Vol. 81 Thursday, No. 155 August 11, 2016
Pages 52969–53244
OFFICE OF THE FEDERAL REGISTER
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Contents Federal Register Vol. 81, No. 155
Thursday, August 11, 2016
Agricultural Marketing Service Coast Guard RULES RULES Livestock Mandatory Reporting: Safety Zones: Reauthorization of Livestock Mandatory Reporting and Pittsburgh Steelers Fireworks; Allegheny River Mile 0.0– Revision of Swine and Lamb Reporting 0.25, Ohio River Mile 0.0–0.1, Monongahela River Requirements, 52969–52974 Mile 0.0–0.1, Pittsburgh, PA, 53004–53005
Agriculture Department Commerce Department See Agricultural Marketing Service See International Trade Administration See Food and Nutrition Service See National Oceanic and Atmospheric Administration See National Telecommunications and Information Alcohol, Tobacco, Firearms, and Explosives Bureau Administration NOTICES Agency Information Collection Activities; Proposals, Commodity Futures Trading Commission Submissions, and Approvals: NOTICES Certification on Agency Letterhead Authorizing Purchase Agency Information Collection Activities; Proposals, of Firearm for Official Duties of Law Enforcement Submissions, and Approvals, 53125–53127 Officer, 53161 Identification of Explosive Materials, 53159–53160 Interstate Firearms Shipment Report of Theft/Loss, Defense Acquisition Regulations System 53160–53161 RULES Defense Federal Acquisition Regulation Supplements: Antitrust Division Technical Amendment, 53045 PROPOSED RULES NOTICES Changes under the National Cooperative Research and Defense Federal Acquisition Regulation Supplements: Production Act: Procurement of Commercial Items, DFARS Case 2016– Heterogeneous System Architecture Foundation, 53162 D006, 53101–53109 Medical CBRN Defense Consortium, 53162–53163 NODE.JS Foundation, 53161–53162 Defense Department ODPI, Inc., 53163 See Army Department Open Platform for NFV Project, Inc., 53163 See Defense Acquisition Regulations System R Consortium, Inc., 53162 NOTICES Charter Amendments, Establishments or Renewals: Army Department Board of Visitors, National Defense University, 53129– NOTICES 53130 Agency Information Collection Activities; Proposals, Submissions, and Approvals, 53127–53128 Denali Commission Meetings: RULES Army Education Advisory Committee, 53128–53129 National Environmental Policy Act Implementing Procedures and Categorical Exclusions, 53033–53039 Centers for Disease Control and Prevention NOTICES National Institute for Occupational Safety and Health Education Department Immediately Dangerous to Life or Health Value NOTICES Profiles: Agency Information Collection Activities; Proposals, Peracetic Acid; Draft, 53147–53148 Submissions, and Approvals: Federal Perkins Loan Program Regulations and General Provisions Regulations, 53130 Centers for Medicare & Medicaid Services RULES Patient Protection and Affordable Care Act; HHS Notice of Employment and Training Administration Benefit and Payment Parameters for 2017: NOTICES Corrections, 53031–53032 Meetings: Native American Employment and Training Council; Workforce Innovation and Opportunity Act, 53167 Civil Rights Commission NOTICES Meetings: Energy Department Virginia Advisory Committee, 53118–53119 See Federal Energy Regulatory Commission
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Environmental Protection Agency Federal Energy Regulatory Commission RULES NOTICES Air Quality State Implementation Plans; Approvals and Applications: Promulgations: Temporary Variance and Soliciting Comments, Motions West Virginia; Prevention of Significant Deterioration and to Intervene, and Protests, 53138–53139 Approval of Infrastructure State Implementation Combined Filings, 53132–53133, 53142 Plans for Specific National Ambient Air Quality Complaints: Standards, 53008–53012 HORUS Central Valley Solar 1, LLC, et al. v. California Final Authorization of State Hazardous Waste Management Independent System Operator Corp., 53132 Program Revisions: Environmental Assessments; Availability, etc.: Arkansas, 53025–53031 Eastern Shore Natural Gas Co.; 2017 Expansion Project, National Ambient Air Quality Standards for Particulate 53134–53136 Matter: Texas Eastern Transmission, LP; Proposed Bayway Technical Correction, 53006–53008 Lateral Project, 53140–53141 Pesticide Tolerances: Filings: Aminocyclopyrachlor, 53012–53019 Cushnie, Colin E., 53139–53140 Halauxifen-methyl, 53019–53025 License Transfer Applications: PROPOSED RULES Alcoa Power Generating Inc.; Cube Yadkin Generation Air Quality State Implementation Plans; Approvals and LLC, 53137–53138 Promulgations: Meetings: Oklahoma; Disapproval of Prevention of Significant PennEast Pipeline Co. LLC; Proposed PennEast Pipeline Deterioration for Particulate Matter Less than 2.5 Project; Location Change, 53133–53134 Micrometers: Significant Impact Levels and Permit Applications: Significant Monitoring Concentration, 53098–53100 Shell Energy North America (US), LP, 53131–53132 Final Authorization of State Hazardous Waste Management Refund Effective Dates: Programs: NextEra Energy Transmission West, LLC, 53141–53142 Arkansas, 53100–53101 West Deptford Energy, LLC, 53130 National Ambient Air Quality Standards for Particulate Requests under Blanket Authorizations: Matter: ANR Pipeline Co., 53139 Technical Correction, 53097–53098 El Paso Natural Gas Co., LLC, 53137 NOTICES Natural Gas Pipeline Company of America, LLC, 53131 Access to Confidential Business Information: Staff Attendance, 53130–53131, 53136–53137 Battelle Memorial Institute, 53144 National Institute for Occupational Safety and Health, 53142–53143 Federal Reserve System U.S. Consumer Product Safety Commission, 53143–53144 NOTICES Changes in Bank Control: Federal Aviation Administration Acquisitions of Shares of a Bank or Bank Holding RULES Company, 53146 Airworthiness Directives: Formations of, Acquisitions by, and Mergers of Bank Continental Motors, Inc. Reciprocating Engines, 52975– Holding Companies, 53146–53147 52991 Formations of, Acquisitions by, and Mergers of Savings and Class E Airspace; Amendments: Loan Holding Companies, 53147 Alma, Bellaire, Cadillac, Drummond Island, Gladwin, Holland, Three Rivers, MI, 52992–52994 Federal Transit Administration Class E Airspace; Establishments: RULES Park River, ND, 52991–52992 PROPOSED RULES Public Transportation Safety Program, 53046–53061 Class D and E Airspace; Amendments; Class E Airspace; Revocations: Fish and Wildlife Service Houston Sugar Land, Alice, Bay City, Brenham, Burnet, NOTICES Falfurrias, Graford, Hamilton, TX; Austin Horseshoe Endangered and Threatened Species: Bay Resort Airport, TX, 53091–53093 Recovery Permit Applications, 53155 Class E Airspace; Amendments and Revocations: Antigo, Ashland, Black River Falls, Cable Union, Cumberland, Eagle River, Hayward, Wausau, WI; Food and Drug Administration Wausau, WI, 53093–53095 RULES New Animal Drugs: Federal Communications Commission New Animal Drug Applications; Opportunity for a RULES Hearing; Correction, 52995–52997 Emergency Alert System, 53039–53045 Regulatory Hearing Before the Food and Drug NOTICES Administration; General Provisions; Technical Agency Information Collection Activities; Proposals, Amendment, 52994–52995 Submissions, and Approvals, 53144–53146 NOTICES Agency Information Collection Activities; Proposals, Federal Election Commission Submissions, and Approvals: NOTICES Manufactured Food Regulatory Program Standards, Meetings; Sunshine Act, 53146 53148–53149
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Guidance for Industry: Certain Document Cameras and Software for Use Infectious Disease Next Generation Sequencing Based Therewith, 53157–53158 Diagnostic Devices: Microbial Identification and Hydrofluorocarbon Blends and Components from China, Detection of Antimicrobial Resistance and Virulence 53157 Markers, 53149–53150 Justice Department Food and Nutrition Service See Alcohol, Tobacco, Firearms, and Explosives Bureau NOTICES See Antitrust Division Agency Information Collection Activities; Proposals, RULES Submissions, and Approvals, 53118 Amendment of Americans with Disabilities Act Regulations to Implement the Americans with Disabilities Act Geological Survey Amendments Act, 53204–53243 NOTICES NOTICES Agency Information Collection Activities; Proposals, Agency Information Collection Activities; Proposals, Submissions, and Approvals, 53155–53156 Submissions, and Approvals: Controlled Substances Import/Export Declaration; Health and Human Services Department Extension, 53165–53166 See Centers for Disease Control and Prevention Credit Card Payment Form, 53165 See Centers for Medicare & Medicaid Services Import/Export Declaration for List I and List II Chemicals, See Food and Drug Administration 53164–53165 See National Institutes of Health Permit to Export Controlled Substances, Subsequent Re- NOTICES Export, 53163–53164 Medicare Program: United States Victims of State Sponsored Terrorism Fund Administrative Law Judge Hearing Program for Medicare Application Form, 53166–53167 Claim and Entitlement Appeals; Quarterly Listing of Program Issuances: March through June 2016, 53150– Labor Department 53151 See Employment and Training Administration Homeland Security Department NOTICES Agency Information Collection Activities; Proposals, See Coast Guard Submissions, and Approvals: Housing and Urban Development Department Coal Mine Dust Sampling Devices, 53167–53168 RULES Disposition of HUD-Acquired Single Family Properties; National Institutes of Health Updating HUD’s Single Family Property Disposition NOTICES Regulations, 52998–53003 Meetings: PROPOSED RULES Big Data to Knowledge Multi-Council Working Group, Federal Housing Administration: 53152 Strengthening the Home Equity Conversion Mortgage National Institute of Allergy and Infectious Diseases, Program, 53095–53097 53151 NOTICES National Institute of Dental and Craniofacial Research Privacy Act; Systems of Records, 53152–53155 Special Emphasis Panel, 53151–53152 Interior Department National Oceanic and Atmospheric Administration See Fish and Wildlife Service RULES See Geological Survey Takes and Imports of Marine Mammals: Incidental to Northeast Fisheries Science Center Fisheries International Trade Administration Research, 53061–53090 NOTICES PROPOSED RULES Antidumping or Countervailing Duty Investigations, Orders, Fisheries of the Caribbean, Gulf of Mexico, and South or Reviews: Atlantic: Granular Polytetrafluorethylene Resin from Italy, 53119– Snapper-Grouper Fishery off the Southern Atlantic States; 53120 Amendment 16, 53109–53117 June Anniversary Dates, 53121–53124 NOTICES Multilayered Wood Flooring from the People’s Republic Agency Information Collection Activities; Proposals, of China, 53120–53121 Submissions, and Approvals, 53124 Porcelain-on-Steel Cooking Ware from the People’s Republic of China, 53120 National Science Foundation NOTICES International Trade Commission Meetings: NOTICES Proposal Review, 53168–53169 Complaints: Certain Industrial Control System Software, Systems National Telecommunications and Information Using Same, and Components Thereof, 53158–53159 Administration Investigations; Determinations, Modifications, and Rulings, etc.: NOTICES Better Enterprise Co. Ltd.; Certain Overflow and Drain Meetings: Assemblies for Bathtubs and Components Thereof, Internet Policy Task Force and the Digital Economy 53156–53157 Leadership Team, 53125
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Nuclear Regulatory Commission Gulf Region Small Business Transportation Resource RULES Center Program, 53191–53196 Operating Philosophy for Maintaining Occupational and Public Radiation Exposures as Low as is Reasonably Veterans Affairs Department Achievable, 52974–52975 NOTICES NOTICES Funding Availability: Confirmatory Orders: Grants for Transportation of Veterans in Highly Rural AREVA, Inc., 53169–53173 Areas, 53196–53201
Securities and Exchange Commission NOTICES Separate Parts In This Issue Self-Regulatory Organizations; Proposed Rule Changes: Investors Exchange LLC, 53174–53176 Part II New York Stock Exchange LLC, 53180–53184 Justice Department, 53204–53243 NYSE Arca, Inc., 53184–53186 NYSE MKT LLC, 53176–53180 Suspension of Trading Orders: Reader Aids Chang-On International, Inc., et al., 53174 Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, and notice Transportation Department of recently enacted public laws. See Federal Aviation Administration See Federal Transit Administration To subscribe to the Federal Register Table of Contents NOTICES LISTSERV electronic mailing list, go to http:// Funding Availability: listserv.access.gpo.gov and select Online mailing list Great Lakes Region Small Business Transportation archives, FEDREGTOC-L, Join or leave the list (or change Resource Center Program, 53186–53191 settings); then follow the instructions.
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CFR PARTS AFFECTED IN THIS ISSUE
A cumulative list of the parts affected this month can be found in the Reader Aids section at the end of this issue.
7 CFR 59...... 52969 10 CFR 20...... 52974 14 CFR 39...... 52975 71 (2 documents) ...... 52991, 52992 Proposed Rules: 71 (2 documents) ...... 53091, 53093 21 CFR 16...... 52994 514...... 52995 24 CFR 291...... 52998 Proposed Rules: 30...... 53095 206...... 53095 28 CFR 35...... 53204 36...... 53204 33 CFR 165...... 53004 40 CFR 50...... 53006 52...... 53008 180 (2 documents) ...... 53012, 53019 271...... 53025 Proposed Rules: 50...... 53097 52...... 53098 271...... 53100 45 CFR 144...... 53031 147...... 53031 153...... 53031 154...... 53031 155...... 53031 156...... 53031 158...... 53031 Ch. IX...... 53033 47 CFR 11...... 53039 48 CFR 213...... 53045 218...... 53045 Proposed Rules: 202...... 53101 212...... 53101 215...... 53101 234...... 53101 239...... 53101 252...... 53101 49 CFR 670...... 53046 50 CFR 219...... 53061 Proposed Rules: 622...... 53109
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Rules and Regulations Federal Register Vol. 81, No. 155
Thursday, August 11, 2016
This section of the FEDERAL REGISTER telephone (202) 720–4868; fax (202) as requested by the lamb industry which contains regulatory documents having general 690–3732; or email Michael.Lynch@ included new definitions and applicability and legal effect, most of which ams.usda.gov. requirements for packers to report lambs are keyed to and codified in the Code of SUPPLEMENTARY INFORMATION: committed for future delivery to the Federal Regulations, which is published under packer and prices of pelts paid to the 50 titles pursuant to 44 U.S.C. 1510. I. Background producer and an amendment to the The Code of Federal Regulations is sold by The 1999 Act was enacted into law on definition of packer-owned lambs (81 the Superintendent of Documents. Prices of October 22, 1999, [Pub. L. 106–78; 113 FR 10132, February 29, 2016). The new books are listed in the first FEDERAL Stat. 1188; 7 U.S.C. 1635–1636(i)] as an proposed rule included a 60-day REGISTER issue of each week. amendment to the Agricultural comment period. AMS received 11 Marketing Act of 1946, as amended (7 timely comments. Nine were U.S.C. 1621 et seq.). On April 2, 2001, substantive and relevant and two were DEPARTMENT OF AGRICULTURE the AMS Livestock, Poultry, and Seed outside the scope of regulation. This final rule incorporates the swine Agricultural Marketing Service Program’s (LPS) Livestock, Poultry, and Grain Market News Division (LPGMN) reporting revisions contained within the 2015 Reauthorization Act and the lamb 7 CFR Part 59 implemented the LMR program as required by the 1999 Act. The purpose reporting revision to amend the [Doc. #AMS–LPS–15–0070] was to establish a program of easily definition of packer-owned lambs as requested by the lamb industry, under RIN 0581–AD45 understood information regarding the marketing of cattle, swine, lambs, and the USDA LMR regulations. Based on the comments received, AMS chose not Livestock Mandatory Reporting: livestock products; improve the price to incorporate in this final rule the Reauthorization of Livestock and supply reporting services of the proposed reporting revisions concerning Mandatory Reporting and Revision of USDA; and encourage competition in lambs committed for future delivery and the marketplace for livestock and Swine and Lamb Reporting prices of pelts paid to producers due to livestock products. The LMR regulations Requirements the burden increase on the packers (7 CFR part 59) set the requirements for affected by this rule and the possible AGENCY: Agricultural Marketing Service, packers or importers to submit purchase negative implications on U.S. trade USDA. and sales information of livestock and within domestic and international ACTION: Final rule. livestock products to meet this purpose. The statutory authority for the markets. SUMMARY: On April 2, 2001, the U.S. program lapsed on September 30, 2005. II. Comments and Responses Department of Agriculture’s (USDA) In October 2006, Congress passed the Agricultural Marketing Service (AMS) AMS received nine relevant Livestock Mandatory Reporting comments from organizations implemented the Livestock Mandatory Reauthorization Act (2006 Reporting (LMR) program as required by representing livestock producers and Reauthorization Act) [Pub. L. 109–296]. meat packers and processors. A review the Livestock Mandatory Reporting Act The 2006 Reauthorization Act re- of 1999 (1999 Act). The LMR program of AMS responses to the comments established the regulatory authority for follows below. was reauthorized in October 2006 and the continued operation of LMR through September 2010. On September 30, September 30, 2010. On July 15, 2008, Swine 2015, the Agriculture Reauthorizations the LMR final rule became effective (73 Act of 2015 (2015 Reauthorization Act) Summary of Comments: Two FR 28606, May 16, 2008). commenters supported reporting reauthorized the LMR program for an On September 28, 2010, Congress additional 5 years until September 30, negotiated formula purchases and the passed the Mandatory Price Reporting publication of late afternoon barrow and 2020, and directed the Secretary of Act of 2010 (2010 Reauthorization Act) Agriculture (Secretary) to amend the gilt purchases in reports issued the [Pub. L. 111–239]. The 2010 following day. These commenters noted LMR swine reporting requirements. This Reauthorization Act reauthorized LMR final rule incorporates the swine that these revisions should provide for an additional 5 years through more information about buyer/seller reporting revisions contained within the September 30, 2015. On January 7, 2013, 2015 Reauthorization Act and a minor interactions indicating the manner in the LMR final rule became effective (77 which swine is marketed and increase revision to the lamb reporting FR 50561, August 22, 2012). requirements under the Agricultural the volume of barrow and gilt data able On September 30, 2015, the to be published in daily purchase Marketing Act of 1946, USDA Livestock Agriculture Reauthorizations Act of Mandatory Reporting regulations. reports. 2015 (2015 Reauthorization Act) [Pub. Agency Response: AMS made no DATES: This final rule is effective L. 114–54] was enacted; it reauthorized changes. October 11, 2016. the LMR program for an additional 5 FOR FURTHER INFORMATION CONTACT: years through September 30, 2020, and Lamb—Lambs Committed Michael Lynch, Director; Livestock, amended the reporting requirements for Summary of Comments: Two Poultry, and Grain Market News swine purchase types and late afternoon commenters supported the requirement Division; Livestock, Poultry, and Seed swine purchases. On February 29, 2016, to report lambs committed, one Program; AMS, USDA, Room 2619–S, AMS published a proposed rule for commenter requested clarification STOP 0252; 1400 Independence Avenue these swine reporting changes and for concerning the specificity of the number SW., Washington, DC 20250–0251; changes to lamb reporting requirements of animals and the date of delivery
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reported, and four commenters, were opposed to the requirement, noting III. Final Revisions representing a majority of the entities the increase in burden on the reporting Under the LMR regulations, certain affected by this requirement opposed entities with little or no benefit to the cattle, swine and lamb packers and this requirement. The opposing industry. These opposing commenters processors, and lamb importers are commenters requested AMS reconsider acknowledged the importance of required to report purchases of livestock this revision. Of the opposing reporting market information for pelts for slaughter and sales of meat products commenters, two stated that the and stressed the point that AMS to AMS. This final rule amends the LMR requirement would be overly currently reports the pelt market on a regulations for swine reporting and burdensome and exceed the scope of the voluntary basis; therefore, they lamb reporting requirements as LMR program as it could change the suggested that mandatory pelt reporting described below. manner in which purchase contracts are would be redundant. Commenters written and implemented. One opposing this provision noted that Swine commenter stated that commitments or grouping pelts into the proposed The swine reporting requirement schedules to deliver lambs vary based classification categories within each lot revisions within this final rule are on factors including feedlot would be difficult and time-consuming authorized through the 2015 performance, weather, transportation because pelts are sorted by a third-party Reauthorization Act. This final rule availability, feed availability, producer based on quality characteristics minimally increases the reporting management, plant capacity, and burden for swine packers. customer demand for lambs and inconsistent with the classification categories in the proposed rule. Also, Swine packers are required to report therefore would be difficult to report. purchase data by four types of purchase: This commenter also stated that the the commenters opposing the revision suggested that compliance with the negotiated purchase, other market reporting requirement would require a formula purchase, swine or pork market significant amount of recordkeeping to requirement would be subjective and difficult to verify since there are no formula purchase, or other purchase maintain compliance. Other arrangement. A ‘negotiated purchase’ is commenters noted that the requirement standard pelt grades used consistently throughout the industry. Two of the a cash or spot market purchase by a would provide too much market packer under which the base price for intelligence about the domestic lamb opposing commenters explained that the swine is determined by seller-buyer packing industry regarding packer pelts are typically sent to another part interaction and agreement on a delivery buying positions and would therefore be of a plant after removal and therefore day; and the swine are scheduled for detrimental to the U.S. lamb industry impossible to match pelt information delivery to the packer not more than 14 putting it at a competitive disadvantage with specific animals. Another days after the date on which the swine to importers of Australian and New commenter expressed that considering are committed to the packer. An ‘other Zealand lamb. the consolidation of the U.S. pelt market formula purchase’ is a purchase Agency Response: AMS recognizes processing industry, this provision to of swine by a packer in which the the value of information this require detailed pelt reporting, and pricing mechanism is a formula price requirement could provide for the thereby increase market transparency, based on any market other than the industry; however, the domestic and could negatively affect trade by international trade implications raise market for swine, pork, or pork product, providing a competitive advantage to and includes a formula purchase in a serious concerns. Therefore, AMS has international buyers of pelts. removed the aforementioned provision case where the price formula is based on for the reporting requirement Agency Response: AMS recognizes one or more futures or options contracts. concerning lambs committed from this the value of information on the pelt A ‘swine or pork market formula final rule. market this provision could provide for purchase’ is a purchase of swine by a the industry. However, the concerns packer in which the pricing mechanism Lamb—Pelts raised by the commenters about the is a formula price based on a market for Summary of Comments: Two burden and difficulty in meeting this swine, pork, or pork product, other than commenters supported the requirement requirement with limited benefit to the a future or option for swine, pork, or to report lamb pelts noting voluntary industry cannot be overlooked. pork product. An ‘other purchase reporting of pelt market interactions Therefore, AMS has removed the arrangement’ is a purchase of swine by between packers and pelt processors has aforementioned provision for the a packer that is not a negotiated become static and no longer indicative reporting requirement concerning pelts purchase, swine or pork market formula of current marketing practices due to from this final rule. purchase, or other market formula consolidation of the lamb packing and purchase, and does not involve packer- pelt processing industries. Furthermore, Lamb—Packer-Owned Lambs owned swine. these commenters noted that the Summary of Comments: One The 2015 Reauthorization Act amended the swine reporting requirement to report volumes and commenter supported the revision of prices for pelts paid to the producer by requirements, subpart C of part 59, by the definition of packer-owned lambs to the packer, instead of the current adding an additional purchase type include animals a packer owns for at voluntary practice of providing market definition for negotiated formula least 28 days immediately before interactions between the packer and pelt purchases of swine, which requires slaughter. The commenter noted this processor, would provide producers swine packers to report swine revised definition would help address with market information to better purchased on a negotiated formula basis determine the whole value of a the need to amend current reporting for as a separate purchase type. As defined slaughter lamb. One commenter lambs in order to provide useful market in § 59.200, the term ‘‘negotiated requested clarification about whether information readily understood by formula’’ is a swine or pork market the requirement would apply to each lot producers and improve AMS market formula purchase under which the of animals or individual animals. Three reporting services. formula is determined by negotiation on commenters, representing a majority of Agency Response: AMS made no a lot-by-lot basis, and swine are the entities affected by this requirement, changes. scheduled for delivery to the packer not
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later than 14 days after the date on better represents the daily market appendix C contains the actual which the formula is negotiated and conditions. reporting forms. These appendices will swine are committed to the packer. not appear in the Code of Federal Lamb Packers will be required to report any Regulations. swine purchased in this manner as a Since the implementation of LMR in With this final rule, all form and negotiated formula purchase. 2001 and its subsequent revisions, the guideline identification numbers Adding a negotiated formula purchase U.S. lamb industry has become more associated with the LMR program are type provides market participants with concentrated at all levels of the updated to reflect the change in the more specific information about the production system through program name from the AMS Livestock various purchase methods used in the consolidation, impacting AMS’ ability and Seed Program (LS) to the AMS daily marketing of swine and a better to publish certain market information in Livestock, Poultry, and Seed Program understanding of the marketplace accordance with the confidentiality (LPS); therefore, form number concerning formulated prices and spot provisions of the 1999 Act. To help designations are changed from LS–XXX negotiated prices. address this issue, the Livestock to LPS–XXX. This change to the form Packers are required to report Marketing Information Center, an numbers is included in the request for purchase data for barrows and gilts for independent provider of economic an extension of a currently approved a morning report not later than 10 a.m. analyses concerning the livestock information collection for OMB 0581– Central time and an afternoon report not industry, conducted an analysis of the 0186 (Commodities Covered by the later than 2 p.m. Central time. The current LMR program for lamb reporting Livestock Mandatory Reporting Act of information to be reported is the same in 2013 at the request of the American 1999); and in the appendices of this for the morning and afternoon reports Sheep Industry Association, an industry final rule. and includes an estimate of the total organization representing sheep Amendments to two swine reporting number of barrows and gilts purchased producers throughout the U.S.1 Based forms, LPS–118 Swine Prior Day Report by each type of purchase, the total on this study, recommendations were and LPS–119 Swine Daily Report, were number of barrows and gilts purchased, proposed to amend the current LMR made to include the new purchase type the base price paid for all negotiated regulations to improve the price and under this final rule, ‘‘negotiated purchases of barrows and gilts, and the supply reporting services of AMS and formula purchase.’’ One form for swine base price paid for each type of better align LMR lamb reporting reporting, LPS–119 Swine Daily Report, purchase of barrows and gilts other than requirements with current industry requires an amendment to the through a negotiated purchase. This marketing practices. These description of the form to include the information must be submitted for all recommendations are the basis for the reporting of the late afternoon covered transactions that occur within lamb reporting change as proposed by purchased barrows and gilts from the one-half hour of each specified the lamb industry for this final rule. previous reporting day in the following reporting time. Packers completing The revision to the lamb reporting reporting day’s daily reports, as shown transactions during the half-hour prior requirements, subpart D of part 59, is an in appendix B. to the previous reporting time report amended definition under § 59.300 for those transactions at the next prescribed the term ‘‘packer-owned lambs.’’ This IV. Classification reporting time. final rule amends the definition for the Executive Order 12866 and Executive The 2015 Reauthorization Act term ‘‘packer-owned lambs’’ to cover Order 13563 directed the Secretary to include in the lambs owned by a packer for at least 28 This final rule is being issued by morning and afternoon daily reports for days immediately before slaughter. the following day, the purchase USDA with regard to the LMR program information for any barrows and gilts Appendices in conformance with Executive Orders purchased or priced after the afternoon The last section of this document 12866 and 13563. reporting time of the current reporting contains three appendices; the proposed Executive Orders 12866 and 13563 day. Under this final rule, the required rule contained four. As explained in direct agencies to assess all costs and information reported remains the same section II above, based on the comments benefits of available regulatory for the morning and afternoon reports; received, AMS chose not to incorporate alternatives, and, if regulation is however, the morning report in this final rule the proposed reporting necessary, to select regulatory requirements under § 59.202 now revisions concerning lambs committed approaches that maximize net benefits requires packers to report purchase data for future delivery and prices of pelts (including potential economic, for barrows and gilts purchased after paid to producers. Therefore, AMS environmental, public health and safety 1:30 p.m. Central time of the previous deleted appendix B in its entirety, effects, distributive impacts, and reporting day and up to that time of the removed all references to lamb forms in equity). Executive Order 13563 reporting day for the total number of appendices C and D, and re-lettered emphasizes the importance of barrows and gilts purchased, the base appendices C and D as appendices B quantifying both costs and benefits, of price paid for all negotiated purchases and C, respectively. Appendix A lists reducing costs, of harmonizing rules, of barrows and gilts, and the base price the forms used by swine packers and of promoting flexibility. paid for each type of purchase of required to report information under the This action has been designated as a barrows and gilts other than through a LMR program. Appendix B provides a ‘‘non-significant regulatory action’’ negotiated purchase. Under this final description of the forms, while under section 3(f) of Executive Order rule, the LMR regulations for the 12866. Accordingly, the Office of afternoon reporting requirements 1 Hearing to Review Reauthorization of the Management and Budget has waived the remain unchanged. The inclusion of the Livestock Mandatory Reporting Act: Hearing before review process for this action. late afternoon swine purchase the Subcommittee on Livestock and Foreign information in the following day’s Agriculture of the Committee on Agriculture, House Regulatory Flexibility Act of Representatives, 114th Cong., 1st sess. (Serial No. reports increases the volume of barrows 114–12). (2015). Retrieved from GPO’s Federal In General. This final rule was and gilts shown in the daily morning Digital System: https://www.gpo.gov/fdsys/pkg/ reviewed under the requirements of the and afternoon purchase reports and CHRG-114hhrg94372/pdf/CHRG-114hhrg94372.pdf. Regulatory Flexibility Act (RFA) (5
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U.S.C. 601–612). The purpose of RFA is average of at least 200,000 sows, boars, required to report under LMR would be to consider the economic impact of a or combination thereof per year during considered small businesses. As this rule on small business entities. the immediately preceding 5 calendar final rule amends a definition and does Alternatives, which would accomplish years. Additionally, in the case of a not impose additional burdens, AMS the objectives of the rule without swine processing plant or person that estimates no costs to implement the unduly burdening small entities or did not slaughter swine during the lamb reporting changes in this final erecting barriers that would restrict their immediately preceding 5 calendar years, rule. There is no annual cost increase ability to compete in the marketplace, it would be considered a packer if the associated with electronically have been evaluated. Regulatory action Secretary determines the processing submitting data or for the storage and should be appropriate to the scale of the plant or person should be considered a maintenance of electronic files businesses subject to the action. The packer under this subpart after submitted to AMS due to this final rule. collection of information is necessary considering its capacity. Projected Reporting. The LMR for the proper performance of the Approximately 36 individual pork regulations require the reporting of functions of AMS concerning the packing companies representing a total specific market information regarding mandatory reporting of livestock of 55 individual plants are required to the buying and selling of livestock and information. Information is only report information to AMS. Based on livestock products. This information is available directly from those entities the NAICS size standard for meat reported to AMS by electronic means required to report under these packing companies with 500 or less and this final rule does not affect this regulations and exists nowhere else. employees, AMS estimates that 24 of requirement. Electronic reporting Therefore, this final rule does not these 36 pork packing companies would involves the transfer of data from a duplicate market information be considered small businesses, packer’s or importer’s electronic reasonably accessible to the USDA. representing 27 individual plants that recordkeeping system to a centrally Objectives and Legal Basis. The are required to report. The figure of 55 located AMS electronic database. The objective of this final rule is to improve plants required to report represents 8.9 packer or importer is required to the price and supply reporting services percent of the federally inspected swine organize the information in an AMS- of the USDA in order to encourage plants in the U.S. The remaining 91.1 approved format before electronically competition in the marketplace for percent of swine plants, nearly all transmitting the information to AMS. swine and lambs as specifically directed estimated to qualify as small business, Once the required information has been by the 2015 Reauthorization Act and the are exempt from mandatory reporting. entered into the AMS database, it is lamb industry requested revisions as To implement the swine reporting aggregated and processed into various authorized through the 1999 Act and changes in this final rule, AMS market reports which are released these regulations, as described in detail estimated the total annual burden on according to the daily and weekly time in the background section. each swine packer to be $108, which Estimated Number of Small includes the annual share of initial schedule set forth in the LMR Businesses. For this regulatory startup costs of $415. There is no annual regulations. As an alternative, AMS also flexibility analysis, AMS utilized the cost increase associated with developed and made available web- North American Industry Classification electronically submitting data or for the based input forms for submitting data System (NAICS), which is the standard storage and maintenance of electronic online as AMS found that some of the used by federal statistical agencies to files submitted to AMS due to this final smaller entities covered under classify business establishments for the rule. mandatory price reporting would purpose of collecting, analyzing, and For lamb reporting, this final rule benefit from such a web-based publishing statistical data related to the amends the definition of the term submission system. U.S. business economy. This analysis ‘‘packer-owned lambs’’ to include lambs Each packer and importer required to compares the size of meat packing owned by a packer for at least 28 days report information to USDA under LMR companies to the NAICS standards to immediately before slaughter. must maintain such records as are determine the percentage of small Under the 2015 Reauthorization Act, necessary to verify the accuracy of the businesses within the industry affected a lamb packer includes any person with information provided to AMS. This by this final rule. Under these size 50 percent or more ownership in a includes information regarding price, standards, meat packing companies facility that slaughtered or processed an class, head count, weight, quality grade, with 500 or less employees are average of 35,000 lambs during the yield grade, and other factors necessary considered small business entities.2 immediately preceding 5 calendar years, to adequately describe each transaction. This final rule amends the reporting or that did not slaughter or process an These records are already kept by the requirements for swine packers by average of 35,000 lambs during the industry. Reporting packers and adding a new purchase type for immediately preceding 5 calendar years importers are required to maintain and negotiated formula purchases of barrows if the Secretary determines that the make available the original contracts, and gilts, and including late afternoon processing plant should be considered a agreements, receipts, and other records purchases of barrows and gilts from the packer after considering its capacity. associated with any transaction relating previous reporting day in the morning The LMR regulations require 10 lamb to the purchase, sale, pricing, and afternoon daily reports of the packers to report information, which is transportation, delivery, weighing, current reporting day. For swine less than 2 percent of all federally slaughter, or carcass characteristics of packers, this final rule applies only to inspected lamb plants. Therefore, all livestock, and to maintain these federally inspected swine processing approximately 98 percent of lamb records for a minimum of two years. facilities that slaughtered an average of packers are exempt from reporting Packers and importers are not required at least 100,000 swine per year during information by this final rule. Based on to report any other new or additional the immediately preceding 5 calendar the NAICS size standard for meat information they do not generally have years and a person that slaughtered an packing companies with 500 or less available or maintain. Further, they are employees and its knowledge of the not required to keep any information 2 North American Industry Classification System, lamb industry, AMS estimates that all that would prove unduly burdensome to code 311611 for abattoirs. lamb packing companies currently maintain.
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In addition, AMS has not identified burden on them to the maximum extent Executive Order 13132 any relevant federal rules currently in practicable. This final rule was reviewed under effect that duplicate, overlap, or conflict Paperwork Reduction Act Executive Order 13132, Federalism. with this rule. Professional skills This Order directs agencies to construe, required for recordkeeping under the In accordance with the Paperwork in regulations and otherwise, a federal LMR regulations are not different than Reduction Act of 1995 (44 U.S.C. statute to preempt state law only when those already employed by the reporting Chapter 35), we included the changes in the statute contains an express entities. Reporting is accomplished reporting and recordkeeping preemption provision. This final rule is using computers or similar electronic requirements for 7 CFR part 59 required by the 1999 Act. Section 259 of means. This final rule does not affect associated with this action into the the 1999 Act, Federal Preemption states, the professional skills required for program’s request for an extension of a ‘‘In order to achieve the goals, purposes, recordkeeping already employed by the currently approved information and objectives of this title on a reporting entities. Reporting will be collection for OMB 0581–0186 nationwide basis and to avoid accomplished using computers or potentially conflicting State laws that similar electronic means. AMS believes (Commodities Covered by the Livestock Mandatory Reporting Act of 1999). could impede the goals, purposes, or the skills needed to maintain such objectives of this title, no State or systems are already in place in those Executive Order 12988 political subdivision of a State may small businesses affected by this rule. impose a requirement that is in addition This final rule was reviewed under Alternatives. This final rule requires to, or inconsistent with, any Executive Order 12988, Civil Justice swine and lamb packing plants of a requirement of this subtitle with respect Reform. This final rule is not intended certain size to report information to the to the submission or reporting of Secretary at prescribed times throughout to have retroactive effect. Section 259 of information, or the publication of such the day and week. The 1999 Act and the 1999 Act prohibits states or political information, on the prices and these regulations exempt the vast subdivisions of a state to impose any quantities of livestock or livestock majority of small businesses by the requirement that is in addition to, or products.’’ establishment of slaughter, processing, inconsistent with, any requirement of Prior to the passage of the 1999 Act, and import capacity thresholds. the 1999 Act with respect to the several states enacted legislation AMS recognizes that most of the submission or reporting of information, mandating, to various degrees, the economic impact of this final rule on or the publication of such information, reporting of market information on those small entities required to report on the prices and quantities of livestock transactions of cattle, swine, and lambs involves the manner in which or livestock products. In addition, the conducted within that particular state. information must be reported to the 1999 Act does not restrict or modify the However, since the federal LMR Secretary. However, in developing this authority of the Secretary to administer program was implemented on April 2, final rule, AMS considered other means or enforce the Packers and Stockyards 2001, these state programs are no longer by which the objectives of this final rule Act of 1921 (7 U.S.C. 181 et seq.); in effect. Therefore, there are no could be accomplished, including administer, enforce, or collect voluntary federalism implications associated with reporting the required information by reports under the 1999 Act or any other this rulemaking. telephone, facsimile, and regular mail. law; or access documentary evidence as AMS believes electronic submission to provided under Sections 9 and 10 of the Executive Order 13175 be the only method capable of allowing Federal Trade Commission Act (15 This final rule has been reviewed in AMS to collect, review, process, U.S.C. 49, 50). There are no accordance with the requirements of aggregate, and publish reports while administrative procedures that must be Executive Order 13175, Consultation complying with the specific time-frames exhausted prior to any judicial and Coordination with Indian Tribal set forth in the 1999 Act and regulation. challenge to the provisions of this final Governments. AMS considered the To respond to the concerns of smaller rule. potential implications of this final rule operations, AMS developed a web-based to ensure this regulation does not have input form for submitting data online. Civil Rights Review substantial and direct effects on Tribal Based on prior experience, AMS found AMS reviewed the potential civil governments and was found to not have that some of the smaller entities covered significant Tribal implications. under mandatory price reporting would rights implications of this final rule on benefit from such a web-based minorities, women, or persons with List of Subjects in 7 CFR Part 59 submission system. Accordingly, AMS disabilities to ensure that no person or group shall be discriminated against on Cattle, Hogs, Lamb, Livestock, Sheep, developed such a system for program Swine. implementation. the basis of race, color, national origin, For the reasons set forth in the Additionally, to further assist small gender, religion, age, disability, sexual preamble, 7 CFR part 59 is amended as businesses, AMS may provide for an orientation, marital or family status, follows: exception to electronic reporting in political beliefs, parental status, or protected genetic information. This emergencies, such as power failures or PART 59—LIVESTOCK MANDATORY review included persons who are loss of Internet accessibility, or in cases REPORTING when an alternative is agreeable employees of the entities that are subject between AMS and the reporting entity. to this regulation. This final rule does ■ 1. The authority citation for 7 CFR Other than these alternatives, there not require affected entities to relocate part 59 continues to read as follows: are no other practical and feasible or alter their operations in ways that Authority: 7 U.S.C. 1635–1636i. alternatives to the methods of data could adversely affect such persons or transmission that are less burdensome groups. Further, this final rule does not ■ 2. Amend § 59.200 by: to small businesses. AMS will work deny any persons or groups the benefits ■ a. Adding a definition for ‘‘Negotiated actively with those small businesses of the program or subject any persons or formula purchase’’ in alphabetical required to report and minimize the groups to discrimination. order;
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■ b. Revising the definition of ‘‘Other reporting time on a reporting day after • NRC’s Agencywide Documents purchase arrangement’’; and the price has been determined. Access and Management System ■ c. Revising paragraphs (3) and (4) and * * * * * (ADAMS): You may obtain publicly- adding paragraph (5) in the definition of ■ 4. Amend § 59.300 by revising the available documents online in the ‘‘Type of purchase’’. definition for ‘‘Packer-owned lambs’’ to ADAMS Public Document collection at The additions and revisions read as read as follows: http://www.nrc.gov/reading-rm/ follows: adams.html. To begin the search, select § 59.300 Definitions. ‘‘ADAMS Public Documents’’ and then § 59.200 Definitions. * * * * * select ‘‘Begin Web-based ADAMS * * * * * Packer-owned lambs. The term Search.’’ For problems with ADAMS, Negotiated formula purchase. The ‘‘packer-owned lambs’’ means lambs please contact the NRC’s Public term ‘‘negotiated formula purchase’’ that a packer owns for at least 28 days Document Room (PDR) reference staff at means a swine or pork market formula immediately before slaughter. 1–800–397–4209, 301–415–4737, or by purchase under which: * * * * * email to [email protected]. The (1) The formula is determined by Dated: August 5, 2016. ADAMS accession number for each negotiation on a lot-by-lot basis; and document referenced in this notice (if Elanor Starmer, (2) The swine are scheduled for that document is available in ADAMS) delivery to the packer not later than 14 Administrator, Agricultural Marketing is provided the first time that a Service. days after the date on which the formula document is referenced. Revision 2 to is negotiated and swine are committed [FR Doc. 2016–19040 Filed 8–10–16; 8:45 am] RG 8.10 and the regulatory analysis may to the packer. BILLING CODE 3410–02–P be found in ADAMS under Accession * * * * * Nos. ML16105A136 and ML15203B408, Other purchase arrangement. The respectively. term ‘‘other purchase arrangement’’ NUCLEAR REGULATORY • NRC’s PDR: You may examine and means a purchase of swine by a packer COMMISSION purchase copies of public documents at that is not a negotiated purchase, swine 10 CFR Part 20 the NRC’s PDR, Room O1–F21, One or pork market formula purchase, White Flint North, 11555 Rockville negotiated formula purchase, or other [NRC–2015–0286] Pike, Rockville, Maryland 20852. market formula purchase; and does not Regulatory guides are not involve packer-owned swine. Operating Philosophy for Maintaining copyrighted, and NRC approval is not Occupational and Public Radiation required to reproduce them. * * * * * Exposures as Low as Is Reasonably FOR FURTHER INFORMATION CONTACT: Type of purchase. *** Achievable (3) A swine or pork market formula Casper Sun, telephone: 301–415–1646, purchase; AGENCY: Nuclear Regulatory email: [email protected]; and Harriet (4) Other purchase arrangement; and Commission. Karagiannis, telephone: 301–415–2493; (5) A negotiated formula purchase. ACTION: Regulatory guide; issuance. email: [email protected]. * * * * * Both are staff of the Office of Nuclear SUMMARY: The U.S. Nuclear Regulatory Regulatory Research, U.S. Nuclear ■ 3. Amend § 59.202 by revising Commission (NRC) is issuing Revision 2 paragraphs (b)(2) through (4) to read as Regulatory Commission, Washington, to Regulatory Guide (RG) 8.10, DC 20555–0001. follows: ‘‘Operating Philosophy for Maintaining SUPPLEMENTARY INFORMATION: § 59.202 Mandatory daily reporting for Occupational Radiation Exposures as barrows and gilts. Low as is Reasonably Achievable.’’ This I. Introduction * * * * * revision describes methods and The NRC is issuing a revision to an (b) * * * procedures that the NRC staff considers existing guide in the NRC’s ‘‘Regulatory (2) The total number of barrows and acceptable for maintaining radiation Guide’’ series. This series was gilts, and barrows and gilts that qualify exposures to employees and the public developed to describe and make as packer-owned swine, purchased as low as is reasonably achievable available to the public information since 1:30 p.m. central time of the (ALARA). regarding methods that are acceptable to previous reporting day and up to that DATES: Revision 2 to RG 8.10 is available the NRC staff for implementing specific time of the reporting day through each on August 11, 2016. parts of the agency’s regulations, type of purchase; ADDRESSES: Please refer to Docket ID techniques that the NRC staff uses in (3) All purchase data for base market NRC–2015–0286 when contacting the evaluating specific issues or postulated hogs purchased since 1:30 p.m. central NRC about the availability of events, and data that the NRC staff time of the previous reporting day and information regarding this document. needs in its review of applications for up to that time of the reporting day You may obtain publically-available permits and licenses. through negotiated purchases; information related to this document Revision 2 of RG 8.10 was issued with (4) All purchase data for base market using the following methods: a temporary identification of Draft hogs purchased through each type of • Federal rulemaking Web site: Go to Regulatory Guide, DG–8033. Revision 2 purchase other than negotiated purchase http://www.regulations.gov and search addresses changes identified since since 1:30 p.m. central time of the for Docket ID NRC–2015–0286. Address Revision 1 was issued in September previous reporting day and up to that questions about NRC dockets to Carol 1975 (the NRC issued Revision 1–R in time of the reporting day, unless such Gallagher; telephone: 301–415–3463; May 1977). In 1991, the NRC information is unavailable due to email: [email protected]. For promulgated amendments to part 20 of pricing that is determined on a delayed technical questions, contact the title 10 of the Code of Federal basis. The packer shall report individuals listed in the FOR FURTHER Regulations (CFR) (56 FR 23360; May information on such purchases on the INFORMATION CONTACT section of this 21, 1991). The 1991 rulemaking first reporting day or scheduled document. included substantive amendments to 10
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CFR part 20 as well as a renumbering of • licenses for independent spent fuel Dated at Rockville, Maryland, this 3rd day those regulations. As such, this revision storage installations under 10 CFR part 72. of August, 2016. to the regulatory guide aligns with the For the Nuclear Regulatory Commission. The backfitting provisions in 10 CFR regulatory structure of current 10 CFR Thomas H. Boyce, part 20 by updating the regulatory 50.109, 70.76, and 72.62, and the issue finality provisions in 10 CFR part 52 do Chief, Regulatory Guidance and Generic guide’s 10 CFR part 20 cross-references. Issues Branch, Division of Engineering, Office In addition, this revision includes not apply to holders of licenses under of Nuclear Regulatory Research. 10 CFR parts 31, 32, 33, 34, 35, 36, 39, additional guidance from operating [FR Doc. 2016–18767 Filed 8–10–16; 8:45 am] 40, or 71, or to holders of licenses for ALARA experience since 1975. It BILLING CODE 7590–01–P provides more details describing non-power reactors under 10 CFR part management responsibilities to ensure 50, unless those licensees also have an commitment to ALARA. NRC regulatory approval under 10 CFR parts 50 or 52 (for a nuclear power DEPARTMENT OF TRANSPORTATION II. Additional Information reactor), 70, or 72. In addition, the Federal Aviation Administration The NRC published a notice of issuance of this regulatory guide would availability of DG–8033 in the Federal not constitute backfitting under 10 CFR 14 CFR Part 39 Register on December 24, 2015 (80 FR 50.109, 70.76, or 72.62, and would not 80395), for a 60-day public comment otherwise be inconsistent with the issue [Docket No. FAA–2012–0002; Directorate period. The public comment period finality provisions in 10 CFR part 52. As Identifier 2011–NE–42–AD; Amendment 39– 18610; AD 2016–16–12] closed on February 22, 2016. The public discussed in the ‘‘Implementation’’ comments on DG–8033 and the NRC section of this regulatory guide, the NRC RIN 2120–AA64 staff responses to the public comments has no intention of initiating any are available in ADAMS under regulatory action that would require the Airworthiness Directives; Continental Accession Number ML16105A137. use of this regulatory guide by current Motors, Inc. Reciprocating Engines holders of 10 CFR part 50 operating AGENCY: Federal Aviation III. Congressional Review Act licenses, 10 CFR part 52, subpart B, C, Administration (FAA), DOT. This regulatory guide is a rule as E, or F approvals, 10 CFR part 70 defined in the Congressional Review licenses, or 10 CFR part 72 licenses. ACTION: Final rule. Act (5 U.S.C. 801–808). However, the If a licensee protected by a backfitting SUMMARY: We are adopting a new Office of Management and Budget has or issue finality provision (a ‘‘protected airworthiness directive (AD) for certain not found it to be a major rule as licensee’’) voluntarily seeks a license Continental Motors, Inc., (CMI) San defined in the Congressional Review amendment or change, and (1) the NRC Antonio (formerly known as Airmotive Act. staff’s consideration of the request Engineering Corp. (AEC)), replacement IV. Backfitting involves a regulatory issue directly parts manufacturer approval (PMA) This regulatory guide provides relevant to this revised regulatory guide cylinder assemblies marketed by Engine updated guidance on the methods and (2) the specific subject matter of this Components International Division acceptable to the NRC staff for regulatory guide is an essential (ECi). On July 17, 2015, AEC was complying with the NRC’s regulations consideration in the NRC staff’s purchased by CMI and is now operating associated with ALARA. The regulatory determination of the acceptability of the as ‘‘Continental Motors—San Antonio.’’ guide applies to current and future licensee’s request, then the NRC staff These cylinder assemblies are used on applicants for, and holders of: may request that the licensee either all CMI model –520 and –550 follow the guidance in this regulatory reciprocating engines, and on all other • Operating licenses for nuclear power guide or provide an equivalent CMI engine models approved for the use reactors under 10 CFR part 50. alternative process that demonstrates of model –520 and –550 cylinder • approvals issued under subpart B, C, E, and F of 10 CFR part 52 (‘‘protected compliance with the underlying NRC assemblies, such as the CMI model –470 applicants and licensees’’). regulatory requirements. Such a request when modified by supplemental type • licenses issued under 10 CFR part 70 to by NRC staff is not considered certificate (STC). This AD was prompted possess or use, at any site or contiguous sites backfitting as defined in 10 CFR by reports of multiple cylinder head-to- subject to licensee control, a formula quantity 50.109(a)(1), 70.76(a)(1), or 72.62(a), or barrel separations and cracked and of strategic special nuclear material, as a violation of any applicable finality leaking aluminum cylinder heads. This defined in 10 CFR 70.4. provisions in 10 CFR part 52. AD requires removal of the affected • operating licenses for nuclear non-power reactors under 10 CFR part 50. If a protected licensee believes that cylinder assemblies, including • specific domestic licenses to the NRC is either using this regulatory overhauled cylinder assemblies, manufacture or transfer certain items guide or requesting or requiring the according to a phased removal schedule. containing byproduct material under 10 CFR protected licensee to implement the We are issuing this AD to prevent part 32. methods or processes in this regulatory failure of the cylinder assemblies, which • specific domestic licenses of broad scope could lead to failure of the engine, in- for byproduct material under 10 CFR part 33. guide in a manner inconsistent with the • discussion in the Implementation flight shutdown, and loss of control of licenses for industrial radiography under the airplane. 10 CFR part 34. section of this regulatory guide, then the • licenses for medical use of byproduct protected licensee may file a backfit DATES: This AD is effective September material under 10 CFR part 35. appeal with the NRC in accordance with 15, 2016. • licenses for irradiators under 10 CFR part the guidance in NRC Management ADDRESSES: For service information 36. • Directive 8.4, ‘‘Management of Facility- identified in this AD, contact licenses for well logging under 10 CFR Specific Backfitting and Information Continental Motors, Inc., San Antonio, part 39. • licenses for source material under 10 Collection’’ (ADAMS Accession No. 9503 Middlex Drive, San Antonio, TX CFR part 40. ML12059A460); and NUREG–1409, 78217; phone: 210–820–8100; Internet: • certificates of compliance for packaging ‘‘Backfitting Guidelines’’ (ADAMS http://www.continentalsanantonio.com. of radioactive material under 10 CFR part 71. Accession No. ML032230247). You may view this service information
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at the FAA, Engine & Propeller September 26, 2013–March 12, 2014— September 3–4, 2014—Challenge Directorate, 1200 District Avenue, Posting Technical Documents/Extension Team’s Review of August 12, 2013, Burlington, MA. For information on the of Comment Period/Initial Regulatory NPRM availability of this material at the FAA, Flexibility Analysis (IRFA) Because the response to our August call 781–238–7125. It is also available We received several hundred 12, 2013, NPRM was so negative—we on the Internet at http:// comments to our August 12, 2013, received over 500 comments, most www.regulations.gov by searching for NPRM. In response to this high-level of disagreeing with the NPRM—we and locating Docket No. FAA–2012– public interest, we undertook several established a Challenge Team to review 0002. actions to help the public understand our proposed AD. The Challenge Team Examining the AD Docket and provide further comment on our was an independent, multi-disciplinary proposed rule. These actions included: team, consisting of three FAA CSTAs, You may examine the AD docket on • Extending the comment period to FAA Aircraft Certification Service (AIR) the Internet at http:// the August 12, 2013, NPRM; managers, and other FAA technical www.regulations.gov by searching for • publishing an IRFA; and experts from all four Directorates. and locating Docket No. FAA–2012– • adding several technical documents The Challenge Team reviewed the 0002; or in person at the Docket that were posted to Docket No. FAA– technical information that formed the Management Facility between 9 a.m. 2012–0002 (see Addresses section of basis for our proposed AD and the and 5 p.m., Monday through Friday, this final rule for information on public comments we had received except Federal holidays. The AD docket locating the docket) on September 20, concerning our proposal. The CSTA for contains this AD, the regulatory 2013. Aircraft Safety Analysis also evaluation, any comments received, and Documents added to the docket independently computed a new risk other information. The address for the include: assessment using the earlier failure Docket Office (phone: 800–647–5527) is (1) FAA Safety Recommendations reports, and the additional failure Document Management Facility, U.S. 08.365, 08.366, and 11.216, which were reports that we received from the public Department of Transportation, Docket written against the subject ECi cylinder as comments to our August 12, 2013, Operations, M–30, West Building assemblies; NPRM. Ground Floor, Room W12–140, 1200 (2) NTSB Safety Recommendation A– Based on their review of this data and New Jersey Avenue SE., Washington, 12–7, also written against the subject the new risk assessment of failures of DC 20590. ECi cylinder assemblies; affected cylinder assemblies, the Challenge Team determined that an AD FOR FURTHER INFORMATION CONTACT: (3) The original ECi AD worksheet for Jurgen E. Priester, Aerospace Engineer, 2011–NE–42–AD, which documents the was still required. But, they suggested Delegation Systems Certification Office, reasons for the proposed rule; changes to make compliance less FAA, Rotorcraft Directorate, 10101 (4) A list of separations of ECi aggressive and substantially reduce cost. Hillwood Parkway, Fort Worth, TX cylinder assemblies; Their recommended changes included 1 76177; phone: 817–222–5190; fax: 817– (5) A white paper on failures of ECi revising the compliance schedule in 222–5785; email: jurgen.e.priester@ cylinders by the FAA Chief Scientific favor of a phased removal schedule, faa.gov. and Technical Adviser (CSTA) for clarifying that overhauled cylinder Engine Dynamics; assemblies are included in the proposed SUPPLEMENTARY INFORMATION: (6) Figures showing ECi Dome phased removal schedule, eliminating Separation Failures; the reporting requirement for removed Discussion (7) A briefing on ‘‘ECi Cylinder Head cylinder assemblies, and removing the August 12, 2013—NPRM Failures on Continental IO 520 & 550 requirement for initial and repetitive Engines’’; and inspection. We issued a notice of proposed (8) FAA Policy Memorandum on January 8, 2015—First Supplemental rulemaking (NPRM) to amend 14 CFR ‘‘Risk Assessment for Reciprocating part 39 by adding an AD that would Notice of Proposed Rulemaking Engine Airworthiness Directives,’’ dated (SNPRM) apply to certain CMI San Antonio May 24, 1999. replacement PMA cylinder assemblies We notified the public of these We adopted the Challenge Team’s marketed by ECi. These assemblies are actions on September 26, 2013, via the recommendations, and we then used on CMI model –520 and –550 Federal Register (78 FR 59293). In that published them as an SNPRM in the reciprocating engines, and all other CMI notification, we extended the comment Federal Register on January 8, 2015 (80 engine models approved for the use of period for the August 12, 2013, NPRM FR 1008) (referred to herein after as the models –520 and –550 cylinder to December 11, 2013. This extension ‘‘January 8, 2015, SNPRM’’). The assemblies such as the CMI model –470 allowed the public additional time to January 8, 2015, SNPRM proposed to when modified by STC. The NPRM comment on our August 12, 2013, modify the schedule for removal of the published in the Federal Register on NPRM and the additional information affected cylinder assemblies, added that August 12, 2013 (78 FR 48828) (referred we had added to the docket. overhauled affected cylinder assemblies to herein after as the ‘‘August 12, 2013, We also determined that we needed to be removed within 80 hours, eliminated NPRM’’). The August 12, 2013, NPRM add to the docket a detailed regulatory a reporting requirement, and removed a proposed to require initial and flexibility analysis to estimate the requirement for initial and repetitive repetitive inspections, immediate effects of the proposed rule on small inspections. replacement of cracked cylinder business entities. We published an We also responded in our January 8, assemblies, and replacement of cylinder Initial Regulatory Flexibility Analysis in 2015, SNPRM, to the several hundred assemblies at reduced times-in-service Docket FAA–2012–0002 on March 12, comments that we received to the (TIS) since new. The August 12, 2013, 2014 (79 FR 13924). August 12, 2013, NPRM. Many of these NPRM also proposed to prohibit the comments were repetitious, so we installation of affected cylinder 1 An authoritative report that informs readers grouped the comments and provided assemblies into any engine. about a complex issue. our responses to the different groups,
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depending on the nature of the provide further technical rationale for Comments comment. For example, some comments this AD. This additional technical Introduction claimed that airplanes can operate information included: safely with a separated cylinder head; (1) The risk analysis process We have, through the August 12, others suggested that pilot error was conducted by the FAA’s CSTA for 2013, NPRM; the September 26, 2013, causing cylinder head separations; and Aircraft Safety Analysis—referenced in posting of additional information; our others recommended adopting less Docket No. FAA–2012–0002 as the extension of the August 12, 2013, NPRM stringent compliance requirements. ‘‘Proposed Airworthiness Directive for comment period; the January 8, 2015, Each of these groups received our ECi Cylinders Risk Analysis Process,’’ SNPRM; and August 28, 2015, SNPRM, response to the group’s comment. referred to herein as the ‘‘risk analysis’’; given the public the opportunity to (2) A risk analysis using the Small participate in developing this AD. The June 9, 2015—Meeting With National public, as noted already, has Transportation Safety Board (NTSB) Airplane Risk Analysis (SARA) methods used by the FAA’s Small Airplane participated deeply in this rule making; The NTSB, in its comments to our Directorate (SAD)—referenced in Docket providing hundreds of comments. August 12, 2013, NPRM; January 8, No. FAA–2012–0002 as ‘‘SARA This final rule includes our responses 2015, SNPRM; and in its Safety Worksheet Systems/Propulsion’’; to any previously unaddressed comments to the August 12, 2013, Recommendation A–12–07, did not (3) A June 2011, presentation by AEC fully support our approach to resolving NPRM and to the January 8, 2015, to the FAA concerning its ECi cylinder the unsafe condition that is the subject SNPRM, that we may have left without assemblies; of this final rule. Therefore, we met with response, and to the August 28, 2015, (4) A list of ECi cylinder assembly the NTSB on June 9, 2015 to understand SNPRM. failure reports consisting of only those the technical basis for their To organize comments and facilitate reports where both cylinder serial recommendation and their technical their review, we again grouped like number and time in service are included objections to our proposed AD. At this comments and responses. These meeting, we presented the NTSB the in the reports; groupings in this final rule’s comments technical information upon which we (5) A list of additional failures of ECi section are: based our AD as amended. Information cylinder assemblies reported by a (1) Comments to withdraw or revise that was reviewed included failure maintenance organization; and the SNPRMs for technical reasons— reports, the risk assessment by the (6) AEC Technical Report 1102–13, these comments, and the resulting FAA’s CSTA for Aircraft Safety dated April 30, 2011. groupings, were similar to those we Analysis, FAA safety recommendations, August 28, 2015—2nd SNPRM used in responding to the August 12, and the data supporting our conclusion 2013, NPRM. They include, for that field inspections had an insufficient We published a second SNPRM in the example, requests to withdraw the probability of cylinder failure detection. Federal Register on August 28, 2015 (80 SNPRM because the commenters claim The NTSB noted in this meeting that FR 52212, referred to herein after as the that ECi cylinder assemblies are not Safety Recommendation A–12–7, and ‘‘August 28, 2015, SNPRM’’). The unsafe; airplanes can operate safely with the NTSB’s comments to the August 12, August 28, 2015, SNPRM retained the a separated cylinder head; or the root 2013, NPRM and the January 8, 2015, compliance requirements proposed by cause of cylinder failure is unknown. SNPRM, were based on the information the January 8, 2015, SNPRM. We (2) Comments to the FAA’s risk available to them at that time. The published the August 28, 2015, SNPRM assessment processes and policies— NTSB also indicated it would reassess to provide the public a final opportunity these comments generally asserted that its recommendation and comments to to comment on the proposed AD and the the SNPRMs should be withdrawn our proposed rule based on the additional technical documentation we because the FAA had not appropriately presentations and the supporting data had added to the docket on June 23, followed its risk assessment processes that we had presented. 2015. and policies in determining that the Also, since many commenters had failure of ECi cylinder assemblies June 23, 2015—Additional Technical cited NTSB support for their positions, Documents Posted represents an unsafe condition. we wanted to clarify our rationale for (3) Comments to the FAA’s We received additional comments to disagreeing with the compliance actions rulemaking processes—these comments our August 12, 2013, NPRM and our proposed by the NTSB in its Safety generally requested that the SNPRMs be January 8, 2015, SNPRM, requesting that Recommendation A–12–7, and the withdrawn, alleging that the FAA had we provide additional information that NTSB’s comments to the August 12, failed to follow its rulemaking processes supports this AD. Commenters also 2013, NPRM and the January 8, 2015, and was adopting a rule that is requested that we identify the data that SNPRM. ‘‘arbitrary and capricious.’’ we relied on in drafting this AD and to The NTSB did submit a final (4) Comments to the cost of explain why that data supported our comment to our August 28, 2015, compliance—these comments indicated conclusion that an unsafe condition SNPRM, that was posted to the docket that the cost of compliance to this AD exists. Based on these comments, we on November 23, 2015. In the NTSB’s was higher than the FAA has estimated concluded that further additional public final comment, the NTSB indicated that and will have a substantial effect on participation in our proposed AD was it now considers that our proposed small entities. appropriate. Specifically, we concluded compliance actions satisfy the intent of (5) Administrative comments—these that we would post to the docket the Safety Recommendation A–12–7. The were generally comments that did not additional technical information information we covered with the NTSB, pertain to the substance of this AD, such responsive to the comments. So, on June including copies of FAA presentations as requests for names and phone 23, 2015, we posted the additional to the NTSB, were subsequently posted numbers of FAA personnel involved in technical information to Docket No. to Docket No. FAA–2012–0002 (see this rulemaking. FAA–2012–0002 (see ADDRESSES section ADDRESSES section of this final rule for (6) Support for the SNPRMs—these of this final rule for information on information on locating the docket) on were comments in support of issuing locating the docket). These documents April 6, 2016. the SNPRMs.
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A. Comments To Withdraw or Revise the Response. We disagree. We correctly manufacturer’s air-cooled aircraft SNPRMs for Technical Reasons stated that ECi has made increases in cylinders. The SNPRM failure modes do the dome transition radius through not include cracks between spark plug Request To Withdraw the SNPRMs cylinder serial number 33697, and has holes, valve seats, injector ports, etc. Because ECi Cylinder Assemblies Are made incremental increases in the head- There is no doubt that the ‘‘hundreds of Not Unsafe to-barrel interference fit at least through failures’’ referenced by the FAA were Comment. Several organizations and cylinder serial number 61177 (see never researched to determine which individuals, commenting to the August Airmotive Engineering Technical Report were of the SNPRM failure mode and 12, 2013, NPRM, commented also to the 1102–13) to address the two identified which were of the ‘‘nuisance’’ variety. January 8, 2015, and August 28, 2015, inherent design deficiencies associated Response. We disagree. Our response SNPRMs, that the affected ECi cylinder with the effected cylinder assemblies. in the January 8, 2015, SNRPM is not assemblies have an equivalent, or lower, These changes are design changes. We misleading. On the contrary, under- failure rate than that of cylinder did not withdraw the August 28, 2015, reporting of cylinder assembly cracks in assemblies manufactured by the original SNPRM. the SDR system further reinforces the equipment manufacturer (OEM). The Comment. RAM Aircraft commented need for this AD. Further, the FAA did commenters also indicated that there that when it submitted its December 9, not include the SDR failure reports have been no failures of ECi cylinder 2013, comment, it calculated the referred to by the commenter as of the assemblies in the last 3 years. These likelihood of a cylinder separation. ‘‘nuisance’’ variety in the list of commenters request the FAA withdraw RAM Aircraft indicated it provided a separations that were used to this AD because they believe that the significant amount of data that proves substantiate the need for this AD. We ECi cylinder assemblies are not unsafe. that the likelihood of a cylinder did not base this AD on nuisance cracks Response. We disagree. The rate of separation is ‘‘extremely remote.’’ RAM in the affected cylinder assemblies. We separation for the affected ECi cylinder commented that at that time their data did not withdraw the August 28, 2015, assemblies is at least 32 times greater showed one cylinder separation for SNPRM. than that of OEM cylinder assemblies every: 21,808 multi-engine aircraft flight Comment. One commenter stated that over the same period. Although there hours, or 172 average years of active the separated cylinders that were are approximately four times as many service; and 42,057 single engine determined to be the precipitating root OEM cylinder assemblies in service aircraft flight hours, or 455 average cause events for the two fatal accidents than ECi cylinder assemblies, the ECi years of active service. Further, that the cited by the FAA in the January 8, 2015, cylinder assemblies suffered more fleet of aircraft using the cylinders SNPRM were overhauled cylinders, so cylinder head separations than OEM subject to the January 8, 2015, SNPRM they therefore should not be considered cylinder assemblies since 2004. This have continued to fly for an additional in the determination as to whether or data is available for review in Docket 14 months since December 9, 2013. not the proposed corrective action No. FAA–2012–0002 (see ADDRESSES RAM Aircraft indicated that there is no should be implemented. section of this final rule for information doubt that both the 21,808 multi-engine Response. We disagree. The ECi on locating the docket). In addition, we aircraft flight hour number, and the cylinder heads, P/N AEC 65385, of the have continued to receive field reports 42,057 single engine aircraft flight hour separated cylinder assemblies that of failures of the affected cylinders in number, would both be now much precipitated the two referenced fatal the past three years. We did not larger, thereby, further reducing the accidents were of the same type design withdraw the August 28, 2015, SNPRM. likelihood of a cylinder separation. and within the same affected cylinder Comment. Commenters also Response. We disagree. RAM assembly serial number range as are questioned the validity of the data that Aircraft’s data does not substantiate its used in new ECi cylinder assemblies. the FAA used to justify the proposed claimed failure rate. Without knowing The cast and then machined aluminum AD. the total number of hours flown on all cylinder head shrink band region has Response. We interpret the comment affected cylinders, it is not possible to the predominant features that define the as suggesting that the data used to accurately calculate an hours-based final interference fit of the overall justify the rule is not valid. We disagree. failure rate. This data is not available for cylinder assembly, not the steel barrel. We used warranty reports from ECi and general aviation aircraft. We, therefore, This is further supported by the fact that RAM Aircraft, which is a major find RAM Aircraft’s estimate to be the design changes that ECi made to the overhauler of CMI engines, STC holder unreliable. We did not withdraw the interference fit were accomplished by for an increased horsepower version of August 28, 2015, SNPRM. modification of the cylinder head. We the affected model engine, and the Comment. RAM Aircraft also did not withdraw the August 28, 2015, largest user of the affected ECi indicated that a statement by the FAA SNPRM. cylinders. We also used service in the January 8, 2015, SNPRM Comment. Danbury Holdings difficulty reports (SDRs), and other field regarding numbers of failures of affected commented that the FAA should service reports regarding ECI cylinder cylinder assemblies was grossly withdraw the August 28, 2015 SNPRM separations. We did not withdraw the misleading. RAM Aircraft assumes that because the FAA failed to establish that August 28, 2015, SNPRM. the FAA is referring to reports entered the affected product, i.e., the ECi Comment. The IPL Group LLC (IPL via the SDR system. RAM Aircraft cylinder assemblies, do not meet the Group) commented that the FAA has indicated that it has provided evidence established minimum safety standards mischaracterized ‘‘quality in an earlier comment that not every established by 14 CFR part 33. enhancements’’ in production as piece of information in the SDR system Response. We disagree. The ‘‘design changes.’’ IPL Group noted that can be taken at face value. With respect operational history of the affected ECi ECi had applied experience gained to this SNPRM, RAM suggested that it cylinder assemblies established that the during manufacturing, as well as is very important to distinguish between affected ECi cylinder assemblies present through service feedback, to make the ‘‘SNPRM failure modes’’ (quotations an unacceptable compromise to safety, quality improvements in production not in original comment) and other an unsafe condition, when installed in and the changes made to the design data types of ‘‘nuisance’’ cracks that are operating aircraft engines. We did not were not due to design deficiencies. common occurrences in all withdraw the August 28, 2015, SNPRM.
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Comment. Danbury Holdings also cylinder, nor that doing so constitutes disagree. The loss of one cylinder’s stated that the ‘‘same unsafe condition’’ safe operation of an engine. We did not power would equate to approximately a that is addressed by this AD is present withdraw the August 28, 2015, SNPRM. 17 to 20% reduction in engine in the cylinders of all manufacturers Comment. Danbury Aerospace horsepower output. Further, loss of a and that the FAA failed to consider commented that the docket contains cylinder at critical phases of flight, for similar failures of the OEM cylinders. evidence from RAM Aircraft that valid example, during climb-out where like Response. We disagree. The affected and verifiable testing establishes that a here, the failure is at increased ECi PMA cylinders have separated at a head-to-barrel separation results in less probability of occurring, produces a significantly higher rate than the OEM than 20 percent power loss to the power loss sufficient to result in a 40% cylinders over the same service period engine. reduction in airplane rate of climb. This since the ECi PMA cylinders entered Response. We disagree. The RAM would constitute a hazardous condition service. ECi itself identified two root Aircraft testing that is included in during a critical phase of flight like causes for the separations. See AEC Docket FAA–2012–0002 only quantified departure/climb. We did not withdraw Technical Report 1102–13 in Docket No. the horsepower output per cylinder. The the August 28, 2015, SNPRM. FAA–2012–0002 (see ADDRESSES section RAM Aircraft testing was of an Comment. RAM Aircraft suggested of this final rule for information on uninstalled engine in a test cell and that this minor power loss would be locating the docket) which recommends RAM Aircraft did not attempt to assess classified as a ‘‘minor hazard,’’ based on withdrawal from service of the affected the impact of reduced engine guidance from the FAA’s ‘‘Policy ECi cylinders. We compared the number horsepower output on airplane level Statement on Risk Assessment for of separations of these affected ECi PMA performance. We estimate that a 20% Reciprocating Engine Airworthiness cylinders to the number of OEM reduction in engine horsepower on a Directives’’ (PS–ANE100–1999–00006). separations over the same service single-engine airplane results in a nearly According to the FAA policy statement, period, since the ECi PMA cylinders 40% reduction in aircraft rate of climb, minor hazards are candidates for AD entered service in meaningful numbers. which is a hazardous condition. It is action only when the probability of the Over the same period of time the also a potentially hazardous condition event is very high. affected ECi PMA cylinders and OEM for twin-engine airplanes due to the Response. We disagree. FAA policy cylinders were in service, the ECi resultant asymmetric thrust condition. classifies service problems that do not cylinders experienced eight times the We did not withdraw the August 28, result in a significant power loss, such number of OEM separations, even 2015, SNPRM. as a partial power loss, rough running, though only one-quarter as many ECI Comment. Danbury Aerospace pre-ignition, backfire, single magneto cylinders were in service as the OEM’s. indicated that FAA guidance material failures, as ‘‘minor.’’ We found that Further, the SDR database does not does not define this condition as cylinder separations results in a 17 to reveal similar separation rates or similar ‘‘hazardous’’ in the certification process. 20% reduction in engine horsepower failure modes for OEM cylinders. Response. We interpret the comment output results in an approximately 40% Therefore, we have no reason to regard to be that the FAA has no definition of reduction in airplane excess power, the OEM cylinder assemblies as subject hazardous event that includes loss of which translates into a 40% reduction to the same or similar unsafe condition. one cylinder in a six-cylinder engine, in airplane rate of climb. This We did not withdraw the August 28, within the engine certification constitutes a hazardous condition that is 2015, SNPRM. regulations (14 CFR part 33). We agree. not a ‘‘minor hazard.’’ We did not The certification process does not define change this AD based on this comment. Request To Withdraw the SNPRMs ‘‘hazardous events.’’ The FAA Comment. RAM Aircraft commented Because Airplanes Can Operate Safely establishes through the engine that Appendix VI of the SAD With a Separated Cylinder Head certification process the minimum Airworthiness Directives Manual Comment. Several commenters standards that an engine needs to meet Supplement includes examples of indicated that we should not issue this to be considered airworthy. For conditions that potentially have a AD because airplanes can continue to example, § 33.19 establishes durability ‘‘minor’’ affect. The loss of one engine operate safely even after a cylinder head standards that are designed to minimize (multi-engine aircraft) is listed as a separation. the development of an unsafe condition condition with a ‘‘minor’’ effect. Given Response. We disagree. An in-flight between overhaul periods. These the ‘‘minor’’ effect of the loss of one cylinder head separation is an unsafe minimum safety standards must also be engine and the likelihood of the condition that presents multiple met by PMA parts, either through cylinder separation being extremely secondary effects. For example, in-flight establishing identicality or through test remote, then this AD should not be fire and loss of aircraft control. Accident and computation. FAA Policy PS– issued against multi-engine aircraft. data confirms that separated cylinders ANE100–1997–00001, provides Response. We disagree. By comparing have also been a precipitating event in guidance for the certification of PMA the risk analysis computed by the CSTA fatal accidents. Therefore, the safety applications for reciprocating engine for Aircraft Safety Analysis with either consequences represented by a cylinder critical, highly stressed or complex the Small Airplane Risk Analysis head separation in flight are significant, parts, including, but not limited to guidelines used by the SAD or the and represent an unsafe condition crankshafts and cylinder heads. We did Engine and Propeller Directorate (E&PD) appropriate for an AD. We did not not withdraw the August 28, 2015, Continued Airworthiness Assessment withdraw the August 28, 2015, SNPRM. SNPRM. Process (CAAP) Handbook guidelines, Comment. Several commenters added Comment. RAM Aircraft commented demonstrates that an AD is needed for that airplane engines are designed and that it has run tests that substantiate and both single and twin-engine aircraft. We certified to safely operate with one document the power loss as a ‘‘minor did not withdraw the August 28, 2015, failed cylinder. power loss’’ in the event of a cylinder SNPRM. Response. We disagree. Applicants separation. Comment. RAM Aircraft commented are not required to show that their Response. We interpret the comment that they are not aware of any engines are designed to operate with to be that any power loss from cylinder substantiated fact of a ‘‘fire,’’ or any one cylinder failed or with a separated head separation is only minor. We other significant consequence of a
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cylinder head separation. Further, RAM Directorate Identifier 2008–NE–01–AD, operation following a cylinder Aircraft noted that in its May 12, 2014, dated September 25, 2009’’). We did not separation or following any other engine comment, it had documented the withdraw the August 28, 2015, SNPRM. structural failure. Section 33.43(d), research it had done to refute the Comment. Danbury Holdings addressing the engine vibration survey ‘‘rumor’’ of a fire resulting from a commented that the FAA had not of § 33.43(a), requires assessment of cylinder head separation of an ECi provided any information to crankshaft vibration for an engine that cylinder. substantiate the FAA’s position that has one cylinder that ‘‘is not firing.’’ We Response. We disagree. RAM Aircraft cylinder separations have a require vibration testing with a critical itself submitted data to the FAA ‘‘significant’’ effect on airplane safety or cylinder inoperative because it is a indicating that a fire could occur from that cylinder separations would result failure condition where stresses may cylinder head separation. FAA in a fire. requested to see that information. FAA’s Response. We disagree. The impact of exceed the endurance limit of the subsequent visit to RAM Aircraft a cylinder separation in-flight is an crankshaft material. We need to know confirmed that a failed cylinder caused unacceptable compromise to safety. To the speed ranges where the excessive an in-flight fire on a Cessna 414 clarify this point, we changed the AD to stresses occur so operational airplane. We did not withdraw the use ‘‘unacceptable.’’ We disagree that information may be provided to flight August 28, 2015, SNPRM. cylinder head separations might not crews so they can avoid these speed Comment. Danbury Aerospace cited result in fire. Cylinder separations can ranges when a cylinder is inoperative. FAA documents that indicate that the result in engine failure and/or fire. As We did not withdraw the August 28, design of an aircraft engine, for an example, on November 29, 1987, a 2015, SNPRM. reciprocating engines, should Piper PA–46 airplane experienced a incorporate mitigating features. For cylinder head separation followed by an Request To Withdraw the SNPRMs example, Danbury quoted SAD in-flight fire. We did not withdraw the Because Root Cause of Cylinder Failure Standards Staff (ACE–110) August 28, 2015, SNPRM. Is Unknown Memorandum, dated May 6, 1986, and Comment. Danbury Holdings also Comment. Several commenters an E&PD Standards Staff (ANE–110) stated that the FAA did not issue a indicated that the FAA has failed to memorandum, dated May 24, 1997. similar AD against the OEM cylinder Response. We agree. However, the assemblies because the OEM identify the root cause(s) of cylinder regulatory requirement for a designer to manufactured more such cylinder head separations. mitigate a possible reciprocating engine assemblies. Response. We disagree. We have failure prior to certification is different Response. We disagree. The FAA did identified the root cause of cylinder than correcting an unsafe condition not mandate actions similar to those failure as design deficiencies inherent in found to exist after certification. This specified in this AD against the OEM the affected ECi cylinder assemblies. AD addresses an unsafe condition— cylinders because the OEM cylinders do These ECi cylinder assemblies have two cylinder head separation, found after not have the inherent design inherent design deficiencies: certification. A regulatory requirement deficiencies that the ECi PMA cylinders Insufficient dome radius and to mitigate in the aircraft design an have. Also, the service history of the insufficient head-to-barrel interference engine failure is not the subject of this OEM cylinders indicates that the OEM fit. These design deficiencies are AD. We did not withdraw the August separation rate is approximately 32 identified in AEC Technical Report 28, 2015, SNPRM. times lower than the ECi cylinders. We 1102–13, dated April 30, 2011, that we Comment. IPL Group commented that did not withdraw the August 28, 2015, posted to Docket No. FAA–2012–0002 we were misusing the term SNPRM. (see ADDRESSES section of this final rule ‘‘catastrophic’’ when describing the Comment. Danbury Holdings further for information on locating the docket). effects of potential cylinder failures. commented that ADs are never justified We did not withdraw the SNPRMs. Response. We disagree. As to the use for any cylinder manufacturer. of ‘‘catastrophic,’’ we did not use the Response. We interpret the comment Comment. Danbury Aerospace term in the August 12, 2013, NPRM, the as suggesting that we should not issue commented that root cause analysis is two SNPRMs, or in this final rule AD. an AD when engine design deficiencies absolutely essential to determining We did not change the August 28, 2015, related to cylinders are found. We compliance with regulations and if an SNPRM based on this comment. disagree. Cylinders are engine parts unsafe condition has been created. Comment. IPL Group argued that a whose structural failure can result in a Therefore the agency has not properly cylinder head separation does not cause degradation to or total loss of, engine identified the unsafe condition. an unsafe event and that there is ‘‘zero power output, and loss of control of an Response. We disagree. We identified evidence’’ in Docket No. FAA–2012– airplane. Cylinder separations aloft can the unsafe condition in the engine: 0002 to support the showing that a also cause an in-flight fire. We will Cylinder head separation. The purpose failed cylinder causes an unsafe exercise our regulatory arm to issue ADs of this AD is to correct that unsafe condition. when we determine doing so is condition. We also identified that Response. We disagree. Cylinder necessary to resolve an unsafe condition cylinder head separations are due to at separations can cause partial or in a product. We did not withdraw the complete engine failure which can August 28, 2015, SNPRM. least two inherent design deficiencies. cause a subsequent loss of power and Comment. Danbury Aerospace All cylinders prior to S/N 33697 have control of the airplane. Loss of control commented that 14 CFR part 33.43 insufficient dome transition radius, and of the airplane may result in the loss of requires assessment of crankshaft all cylinders prior to S/N 61177 the airplane and injuries or death. vibration for one cylinder not firing insufficient head-to-barrel interference Additionally, we note the NTSB has because the condition is not an engine fit. ECi characterized both of these as stated that cylinder head separations failure event condition. ‘‘inherent design deficiencies’’ in its could result in a loss of control of the Response. We disagree. As we noted AEC Technical Report 1102–13. We did airplane (see NTSB’s comment to in our January 8, 2015, SNPRM, 14 CFR not withdraw the August 28, 2015, ‘‘Docket No FAA–2008–0052; part 33 does not require continued safe SNPRM.
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Request To Withdraw the SNPRMs maintenance. Also, cylinder removal Request To Revise Applicability Because Pilot Error Is Causing Cylinder and replacement is a maintenance Comment. Danbury Holdings Head Separations action addressed in engine maintenance commented that the FAA has no Comment. Danbury Aerospace and manuals. We did not withdraw the evidence that all cylinders through S/N Danbury Holdings commented that SNPRMs. 61176 are at risk for separation in the cylinder head separations involving the Request To Justify 80-Hour Removal first thread due to insufficient head-to- ECi cylinder assemblies affected by this Requirement for Overhauled Cylinder barrel interference fit. AD were caused by excessive CHTs, Assemblies Response. We disagree. The SDR presumably caused pilot error, rather database and other field reports than by design deficiencies of the Comment. Danbury Aerospace and document instances of first-thread cylinder assemblies. Danbury Holdings requested that the failures of cylinders manufactured to One operator observed that operators FAA provide evidence (including design data applicable to all cylinders who use the ECi cylinder assemblies engineering analysis) supporting its prior to S/N 61177. For this reason, all and operate them within limits and with conclusion that overhauled cylinder cylinders through S/N 61176 are subject good instrumentation are not having assemblies should be removed within to the corrective actions of this AD. We issues. This operator noted that 80 hours after the effective date. did not change this AD based on this everyone, with the exception of the comment. Response. We interpret the comment FAA, believes that overheating beyond Comment. One commenter stated that to be that the commenters disagree that CHT limits by operators has a direct he has an O–470 engine converted by P. the phased removal plan required by effect on cylinder head separation. Ponk Aviation to the equivalent of an Response. We disagree. Although this AD is appropriate. We disagree. O–520 engine. He indicated that those pilot error may cause excessive CHT, we This AD mandates a phased removal of engines should not be affected by this have no data to suggest it is the cause affected cylinders with the intent to AD. of the unsafe condition that is the retire all affected cylinders by initial Response. We disagree. The affected subject of this AD. If pilot error results TBO. The FAA recognizes that some S/N cylinders are installed on –470 in excessive CHT, which leads to cylinders in service may already have engines, as well as the –520 and –550 cylinder head separation, then we exceeded their initial TBO. Metal engine models. Any engine that uses would expect to see similar damage in fatigue damage is cumulative, and the one of these affected cylinders is at risk. engines with other than ECi cylinder longer a cylinder head remains in We have received at least one report of assemblies installed where the pilots service, the more likely it will fail due a separation of these affected S/N exceeded the same limitation(s). to one of the inherent design cylinders on –470 engines. Although the However, we do not have any such data. deficiencies. Overhauled cylinders have unmodified –470 engines have lower Also, we have no evidence that either likely experienced more load and engine horsepower output, their brake intentional or inadvertent exceedance of temperature cycles than lower time mean effective pressure (BMEP) is CHT limits has caused cylinder cylinders and the total time in service actually higher than that of the –520 and separation. Further ECi identified since new of overhauled cylinders often –550 engines. BMEP is proportional to several design deficiencies in AEC cannot be determined. Our the ratio of horsepower per cubic inch Technical Report 1102–13, dated April determination of 80 hours is supported of displacement. Therefore, the actual 30, 2011.We did not withdraw the by our Challenge Team’s findings and operating stresses in the same cylinder SNPRMs. our risk analysis that we uploaded to wall are even higher when these same FAA Docket No. FAA–2012–0002 (see cylinders are installed in an unmodified Request To Withdraw the SNPRMs ADDRESSES section of this final rule for –470 engines than it would be for either Because of the Risk of Maintenance information on locating the docket). We the –520 or the –550 engines. The P. Errors did not change this AD based on this Ponk Aviation STC increases the Comment. Several commenters comment. displacement of the unmodified –470 commented that the FAA should Comment. Danbury Aerospace and engine to –520 cubic inches by withdraw the SNPRMs because the Danbury Holdings also stated that the installing the –520 cylinders on the removal and replacement of affected FAA had not substantiated that the –470 engine. Given that no valid cylinder assemblies before time between overhaul of a cylinder does not reduce sensitivity analysis exists showing the overhaul (TBO) would result in the existing fatigue damage that a relationship of BMEP to fatigue life of maintenance errors that would cylinder may have incurred while in these cylinders, and since the crack adversely affect safety. For example, IPL service. propagation rate is also unknown, we Group indicated that replacement of the have included all the –470 engines, cylinder assemblies would likely result Response. We disagree. Fatigue including those modified by the P. Ponk in events of main bearings losing clamp- strength of metal alloys operated at high Aviation STC, in the effectivity of this up and turning, resulting in cylinder temperatures continuously decreases AD. We did not change this AD based through-bolt and flange stud failures, with cycles until failure. This is on this comment. which would likely result in total particularly true for aluminum alloys, engine failure. including the aluminum alloy used to Request To Adopt Less Stringent Response. We disagree. Our cast cylinder heads. Metallic structural Compliance Requirements regulatory framework presumes that elements that are operated at high Comment. AOPA, RAM Aircraft, as maintenance will be performed temperatures are more susceptible to well as operators and private citizens, correctly by experienced personnel time dependent fatigue. The overhaul of requested that we adopt less stringent authorized by the FAA to return aircraft a cylinder assembly does not reverse the requirements than those in the proposed to service in an airworthy condition. fatigue damage that had been previously AD. The commenters indicated that the Further, we have not observed any accumulated in the aluminum cylinder affected cylinder assemblies should be negative effects on safety due to removal head casting. We did not change the AD inspected at regular intervals, but of these cylinder assemblies during based on this comment. removed at TBO. For example, one
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commenter suggested recurring manifold pressure and 310 horsepower separated cylinders (for example, see inspections every 60 hours. Several will produce less stress on a cylinder SDR Report 2010FA0000179) that commenters cited the NTSB in support head than a TSIO–520–NB engine that recently passed the compression test/ of its recommendation. RAM Aircraft is allowed 41 inches of manifold soap inspections. We did not change commented that the FAA may be pressure and 325 horsepower, as this AD based on this comment. jumping to conclusions by eliminating installed on a Cessna 414 airplane. Comment. One commenter these inspections. RAM Aircraft noted Response. We disagree. Service commented that, based on his that the failure of a compression/soap history indicates that the affected experience, ECi has an aluminum head test to detect a particular crack in a cylinder assemblies have cracked on cracking issue and that these cylinders cylinder assembly on several occasions –470, –520, and –550 engine models. seem to crack more than CMI cylinders. does not mean that the test will fail to The AD, therefore, applies to all affected The commenter further indicated that detect cracked cylinders on most CMI –470, –520 and –550 engine he believed the number of cylinder occasions. By their very nature and models. We have no engineering failures is underreported in the SDR design compromises, i.e., steel barrels to analysis or test data to justify varying database. The commenter further noted contain the forces of combustion compliance times by engine model or that in his 30 plus years of aircraft combined with lighter cylinder head applying the corrective actions of this maintenance experience, he has never alloys to reduce weight so that aircraft AD to only the higher power engines. seen a cylinder failure rate this high. engines have commercial viability and We did not change this AD based on The commenter welcomed an AD that value, and the harsh conditions, this comment. requires these cylinders to be inspected altitudes, and temperatures in which Comment. Danbury Aerospace at around 100 hours and the reports of they operate, reciprocating aircraft observed that the average number of cracks sent to an FAA database. engine cylinders will inevitably crack. cylinder assemblies, P/N AEC 631397, Response. We note the comment. We RAM Aircraft indicated that there is no in the serial number range in the agree that the ECi failure rate is much question but that some cylinders are January 8, 2015, SNPRM that are still in higher than the OEM failure rate over going to crack, and that therefore, they operation have less than 500 hours left the same field service period and that must be properly operated, maintained, to TBO. Danbury Aerospace indicated cylinder cracks are under-reported. For and inspected. that the early removal of these cylinders example, many of the RAM failures Response. We disagree. Repetitive is not justified by a statistical analysis listed in the docket were not reported inspections until TBO, as suggested by developed in accordance with the E&PD under the SDR system or as required by the commenters, do not adequately CAAP Handbook. 14 CFR 21.3. We did not change this AD address the unsafe condition in this Response. We disagree. We do not based on this comment. particular case. Repetitive inspections know the exact number of total hours Comment. RAM Aircraft commented would not detect cracks until they have TIS for each affected cylinder assembly. that, based on its previous comments, already progressed completely across We have no data to support the claim the FAA should withdraw the SNPRMs. the cylinder head wall thickness. that the existing fleet of cylinder RAM Aircraft recommended that the Several operators and mechanics have assemblies already has accumulated FAA consider education and requiring reported that they successfully passed 1,200 or more hours TIS. Service history inspections of all reciprocating airplane the compression/soap test with a also shows that most of the separations engine cylinders on the terms and partially separated cylinder. Others occurred well before initial TBO. conditions the FAA determines to be have reported that they successfully Therefore, removal of the affected appropriate. passed the compression/soap test and cylinder assemblies before TBO is Response. We disagree. Our analysis then experienced an in-flight separation appropriate. We did not change this AD indicates that an AD is required to before the next scheduled 50-hour based on this comment. resolve the unsafe condition presented inspection. Comment. Danbury Holdings by installed affected ECi cylinder Therefore, we conclude that these commented that the FAA had not assemblies. We did not withdraw the tests are not sufficiently reliable. Also, provided evidence that there have been SNPRMs based on this comment. engine overhaul is not a requirement for separations within the originally Comment. One commenter suggested all operators. Therefore, tying the proposed 50-hour recurrent that users of a JPI or other engine proposed recurrent inspection to engine compression test/soap inspection monitoring system should be subject to overhaul would not resolve the unsafe interval. a different compliance interval. condition. Based on its comment to the Response. We disagree. We received Response. We disagree. As noted August 28, 2015, SNPRM, we know that several field reports of cylinder previously, the root cause of these the NTSB now considers this rule separations occurring within 50 hours of cylinder failures are design deficiencies. consistent with the rationale they have passing either the originally proposed The affected cylinders may fail without provided in the past in support of NTSB 50-hour recurrent compression test/soap overtemping. Therefore, use of an Safety Recommendation A–12–7 inspection in the August 12, 2013, engine monitoring system like JPI would regarding these affected cylinder NPRM. SDR report No. SQP2011F00000 be insufficient to detect the unsafe assemblies (Reference NTSB Comment was submitted by a part 135 operator condition. We did not change this AD FAA–2012–0002–0653, dated who operated a Cessna T210N with an based on this comment. September 24, 2015 in Docket FAA– affected ECi cylinder assembly installed. 2012–0002). We did not change this AD The operator reported that on Request To Use Mandatory Service based on this comment. September 9, 2011, that affected ECI Bulletin Instead of This AD Comment. One commenter indicated cylinder head separated at the 5th Comment. One commenter requested it was incorrect to apply the same cooling fin on-head. At the time of the that the FAA use a mandatory service requirement to remove the cylinders at failure, the engine and failed cylinder bulletin instead of this AD to implement specified intervals to different CMI had 817.6 hours time since overhaul/ corrective action. engine models. He noted, for example, time since new, and its last compression Response. We disagree. Requiring a that the TSIO–520–J engine that is check inspection was at 19.2 hrs. prior. manufacturer to issue a mandatory allowed to produce 36 inches of Other field reports also document service bulletin is outside the scope of
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the FAA’s authority. We did not change frequency of occurrence or likelihood of this AD and the official reports of the this AD based on this comment. occurrence (failure rate) for that specific two fatal accidents that the FAA adverse event. Each of these factors is references. B. Comments to the FAA’s Risk assessed independent of the other and Response. We disagree. Reports by the Assessment Processes and Polices then entered as separate inputs into a Bahamas Department of Civil Aviation Request That the FAA Follow Its Own risk matrix that yields an overall level and the NTSB establish that these Risk Assessment Policies and Guidance of risk for the event. accidents in the Bahamas and in We performed the risk assessment Swanzey, New Hampshire involved Comment. Multiple commenters, required by FAA Order 8040.4A and separated ECi cylinders (see Report including Danbury Aerospace, Danbury concluded that this AD was necessary. AAIPU# A10–01312 and NTSB Holdings, and the Aeronautical Repair Therefore, our August 12, 2013, NPRM, Accident Report No. NYC02FA178, Station Association (ARSA) commented as revised by the January 8, 2015 respectively). We have determined that that the FAA did not follow its own risk SNPRM, and as republished on August the separation of the affected ECi assessment policies and guidance, such 28, 2015, are consistent with FAA Order cylinder assemblies represents an as FAA Order 8110.107A, Monitor 8040.4A, FAA Order 8110.107A, and unsafe condition. We are not required to Safety/Analyze Data (MSAD), dated the CAAP Handbook. We did not establish any further connection with October 1, 2012, and FAA Order change this AD based on this comment. these accidents. We did not change this 8040.4A, Safety Risk Management Comment. Commenters, including AD based on this comment. Policy, dated April 30, 2012, and the Danbury Holdings, commented that the Comment. Danbury Holdings added E&PD CAAP Handbook, dated FAA should not have included the that the FAA should not have included September 23, 2010. failure rate of the affected ECi cylinders the fatal accident in the Bahamas in the Response. We interpret this comment in the FAA risk assessments that were FAA’s risk assessments because the as a comment that we failed to follow used to substantiate the need for the NTSB full narrative for that accident FAA Order 8110.107A, FAA Order corrective actions in this AD. Danbury (ERA11WA008) made no mention of a 8040.4A, and the CAAP Handbook. We Holdings indicated that the failure rate cylinder separation. disagree. We performed the process as is irrelevant to the unsafe condition. Response. We interpret the comment required by FAA Order 8110.107A, Response. We disagree. We did not as the fatal accident in the Bahamas is Monitor Safety/Analyze Data (MSAD), use the failure rate in the risk analysis, not relevant to this AD. We disagree. As dated October 1, 2012, to analyze data however, we used the number of noted in the previous comment and determine corrective action for reported failures. A risk analysis response, we have determined that the continued operational safety issues. We involves using past data; both successful separation of the affected ECi cylinder acquired the failure event data from the operation as well as failures (including assemblies, as occurred in the accident MSAD, SDR, NTSB databases, ECi, and cracks), to develop a relationship in the Bahamas, represents an unsafe outside sources. We conducted a hazard between part parameters, including age condition. We did not change this AD. criteria analysis where we filtered the and usage, and risk of failure. Therefore, Comment. Danbury Holdings also data to identify relevant events. We our use of failures was appropriate in stated that the root cause of the other performed a qualitative preliminary risk this risk analysis. We did not change fatal accident, the Swanzey, New assessment and determined that this this AD based on this comment. Hampshire, accident (see NTSB safety problem required corrective Comment. Danbury Aerospace Accident Report No. NYC02FA178) that action. We performed risk analyses in commented that the FAA ignored its the FAA included in its risk conjunction with the E&PD risk own standards for what constitutes an assessments was unsafe and improper assessment criteria. We identified that unsafe condition and therefore has operation of the airplane by the pilot not the ECi model separations have two failed to identify one. cylinder separation. inherent design deficiencies: Response. We disagree. The FAA Response. We disagree. As noted in Insufficient dome radius and followed its standard risk analysis the preceding comment discussion, we insufficient head-to-barrel interference processes in determining that the unsafe have determined that the separation of fit. Finally, we coordinated with our condition represented by the affected the affected ECi cylinder assemblies, as Corrective Action Review Board, which ECi cylinder assemblies exists. 14 CFR occurred in the accident in Swanzey, determined and agreed to the proposed part 39 prescribes that we issue an AD New Hampshire, represents an unsafe corrective action in our August 12, when an unsafe condition exists in a condition and is therefore relevant to 2013, NPRM. product and that condition is likely to this AD. We did not change this AD Later, as part of the Challenge Team’s exist or develop in other products of the based on this comment. meeting in September, 2014, the CSTA same type design. We did not change Comment. Danbury Aerospace added for Aircraft Safety performed a risk this AD based on this comment. that the accident in the Bahamas should analysis that confirmed the need for this Comment. Danbury Holdings not be included in the FAA’s risk AD and shaped its compliance plan. We commented that the basis for the FAA’s analysis because: (1) It did not concern compared the results of the CSTA’s risk risk analysis is seriously flawed because a U.S.-registered aircraft and therefore analysis to the guidelines used by the the unsafe condition must be the basis cannot be used in this rulemaking; (2) SAD in its SARA and to the guidelines for the failure, not one unsubstantiated loss of control and uncontrolled flight in the E&PD’s CAAP Handbook and fatality. was cited as the cause; and (3) even if determined that an AD is required. Response. We disagree. The unsafe the accident could be included, it does FAA Order 8040.4A requires a risk condition in the engine presented by the not meet hazard level thresholds assessment methodology as outlined in presence of affected ECi cylinders is the required for rulemaking. the Order. FAA Order 8040.4A notes basis of this AD. We did not change this Response. The commenter presents that the safety risk is a composite of two AD based on this comment. three comments, which have three parts. factors: The potential ‘‘severity’’ or Comment. Danbury Holdings further We disagree with all three parts. As to worst possible consequence(s) or commented that the FAA had failed to part one, the Bahamas accident involved outcome of an adverse event that is establish a connection between the a U.S.-type certificated product, an assumed to occur, and also the expected cylinder separation issue addressed by engine with affected ECi cylinders
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installed. Therefore, the product is the Response. We disagree. The Response. We disagree. In comments proper subject of this AD. As to part supporting documents that Danbury to the August 12, 2013, NPRM some two, the accident involved an engine Holdings referred to, identified above, commenters requested that we use the with an ECI cylinder separation, a support that the FAA followed its SARA to determine if an AD was failure of a part of the engine, during process and were used to help warranted. We used the SARA, and it flight. A cylinder separation during determine that an unsafe condition confirmed the need for an AD. We did flight represents an unsafe condition in exists. We have also uploaded not change this AD based on this the engine. Therefore, our action in additional documents to Docket No. comment. issuing this AD is appropriate. As to the FAA–2012–0002 on June 23, 2015 (see Comment. Danbury Holdings part three, the cylinder failure presented ADDRESSES section of this final rule for commented that RAM Aircraft had a hazard to the engine and an unsafe information on locating the docket). concluded, through its own risk condition, and therefore, meets the The risk analysis performed by the analysis, that ‘‘the probability of a threshold for an AD. The need for this FAA’s CSTA for Aircraft Safety cylinder separation is extremely AD was confirmed by comparing the Analysis, recommends removal and remote’’ and that ‘‘historical data and result of the risk analysis to the replacement of the affected ECi cylinder information thus far evident leads to the guidelines in the SAD’s SARA and the assemblies as specified in this AD. The conclusion that there has been no E&PD’s CAAP Handbook. We did not SARA applied to failures of ECi cylinder physical discomfort to pilots or change this AD based on this comment. assemblies confirms that an AD is passengers and no damage to any aircraft as a result of the subject Request That the FAA Define necessary. AEC Technical Report 1102– 13 states that a root cause for the first cylinders.’’ Guidelines Used To Define an Unsafe Response. We interpret the comment Condition thread separations was an inherent design deficiency in the form of as two parts; first, that our risk Comment. Danbury Holdings insufficient head-to-barrel design assessment reached a wrong conclusion, commented that the FAA had not interference fit. AEC Technical Report and second, that a cylinder head defined the guidelines that it used to 1102–13 recommended withdrawing separation does not result in any establish the existence of an unsafe these cylinder assemblies from service. discomfort to pilots or passengers, or condition. damage to the aircraft. We disagree. We did not withdraw the August 28, Response. We interpret the comment FAA Order 8040.4A, ‘‘Safety Risk 2015, SNPRM. to be a request to identify what guidance Management Policy’’, dated April 30, Comment. Danbury Holdings defines an unsafe condition. The 2012, FAA Order 8110.107A, ‘‘Monitor commented that that the FAA’s risk comment therefore, is not to the Safety/Analyze Data,’’ and the guidance technical merits of this AD, but a analyses and other technical in Engine & Propeller Directorate request for general guidance. As such, a information were ‘‘flawed, improperly memorandum ‘‘Risk Assessment for response is unnecessary per the applied, and replete with Reciprocating Engine Airworthiness Administrative Procedures Act (APA), unsubstantiated conclusions.’’ Directives,’’ PS–ANE–100–1999–00006, and we recommend that the commenter Response. The commenter failed to dated May 24, 1999, direct how we do seek his answer through a direct request provide any examples of FAA technical a risk assessment. to the FAA Aircraft Certification Service information that was flawed, improperly We analyze safety risk, per FAA Order or Flight Standards Division. We did not applied, or replete with unsubstantiated 8040.4A, as a composite of two factors: change this AD based on this comment. conclusions. Without those details, we The potential ‘‘severity’’ or worst are unable to consider the comment as possible consequence(s) or outcome of Request To Withdraw the August 28, having technical merit. Accordingly, we an adverse event that is assumed to 2015, SNPRM Because Supporting interpret the comment as a general occur, and also the ‘‘expected frequency Documents Do Not Support Issuing This objection to the need for the AD. We of occurrence’’ for that specific adverse AD disagree. Our Challenge Team applied event. FAA Order 8040.4A directs us to Comment. Danbury Holdings the risk assessments by the FAA’s CSTA assess both factors independently, then commented that the documents for Aircraft Safety Analysis, against the enter each as separate inputs into a risk provided by the FAA in Docket No. SAD’s SARA guidelines and the E&PD’s matrix. The matrix yields an overall FAA–2012–0002 do not support CAAP guidelines and independently level of risk for the event. The overall issuance of this AD. The supporting concluded that an AD is required to risk is then categorized as either documents referred to by Danbury mitigate the unsafe condition presented ‘‘Unacceptable Risk,’’ ‘‘Acceptable Risk Holdings are: (1) The risk analysis by installed affected ECi cylinder with Mitigation,’’ or ‘‘Acceptable Risk.’’ conducted by the FAA’s CSTA for assemblies. We presented both risk The corrective action(s), if any, is driven Aircraft Safety Analysis; (2) a risk assessments in Docket No. FAA–2012– by the assessed overall risk. Table C–1 analysis using the Small Airplane Risk 0002 (see ADDRESSES section of this final of Appendix C of FAA Order 8040.4A Analysis (SARA) methods; (3) a June rule for information on locating the defines five levels of severity and Table 2011, presentation by Airmotive docket). We did not change this AD C–2 defines five levels of event Engineering to the FAA concerning its based on this comment. frequency that are used in the ECi cylinder assemblies; (4) a list of ECi Comment. Danbury Holdings determination of composite risk. cylinder assembly failure reports commented that it found no relationship The FAA classification for the consisting of only those reports where between the risk analysis using SARA ‘‘severity’’ of an engine cylinder head both cylinder serial number and time in methods and any analysis or conclusion separation event, per FAA Order service are included in the reports; (5) provided by the agency in this 8040.4A, is ‘‘hazardous’’ for both single- a list of additional failures of ECi rulemaking. We interpret Danbury engine and light-twin airplanes for cylinder assemblies reported by a Holding’s comment as suggesting that several reasons. Cylinder head maintenance organization; and (6) no relationship exists between the risk separations can significantly reduce the Airmotive Engineering Corporation analysis using SARA methods and any power of the airplane such that under Technical Report 1102–13, dated April analysis or conclusion provided by the some conditions it may not be able to 30, 2011. agency in this rulemaking. safely takeoff and climb out. It could
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also create a dangerous asymmetric on and consistent with this overall risk approximately 8 (comparative cylinder thrust condition for twin-engine assessment. failure rate) × 4 (comparative production airplanes. If the separation occurs in We, therefore, disagree with claims by rate), which showed an overall failure cruise flight, the airplane may have RAM Aircraft and other commenters rate 32 times higher for ECi cylinders. insufficient excess power to continue that a cylinder head separation will Since we first published that rate safe flight at any altitude. Cylinder head have a negligible effect on airplane information, we subsequently learned of separations have also caused in-flight safety. Also, several documented in- more failures of affected ECi cylinders. fires. These are all unsafe conditions flight fires were precipitated by a Those additional failures would, if that warrant a ‘‘hazardous’’ severity cylinder head separation. We did not included, increase the ECi failure rate. level for risk assessment purposes. change this AD based on this comment. We did not update the failure rate to Table C–2 in FAA Order 8040.4A Comment. Danbury Holdings also higher than 32 times that of the OEM’s defines ‘‘extremely improbable’’ as ‘‘So commented that AEC Technical Report because it did not affect our decision unlikely that it is not expected to occur, 1102–13 was ‘‘disavowed’’ by AEC [now regarding this AD. We did not change but it is not impossible.’’ It defines CMI San Antonio] since it was obtained this AD based on this comment. ‘‘extremely remote’’ as ‘‘Expected to under questionable circumstances and The FAA has also issued ADs against occur rarely.’’ It defines ‘‘Remote’’ as has since been proven incorrect given other cylinder manufacturers, including ‘‘Expected to occur infrequently.’’ It its predictions did not come to fruition. mandating early retirement of cylinders defines ‘‘probable’’ as ‘‘Expected to Response. We disagree. AEC to preclude cracking and separation. For occur often.’’ Finally, it defines originally provided the analysis to the example, ADs 2014–05–29 and 2007– FAA when it was considering a service ‘‘frequent’’ as ‘‘expected to occur 04–19R1 both apply to certain Superior bulletin for the affected ECi cylinder routinely.’’ Air Parts cylinder assemblies. We did assemblies. ECi requested the FAA Service history failure reports indicate not change this AD based on this return or destroy ECi Technical Report that in a population of 43,000 cylinders, comment. 1102–13 after they learned the FAA was Comment. Danbury Holdings also that 1 of every 1,000 cylinders could considering an AD. We found the data commented that the FAA failed to place separate on average; either in the dome in this report useful in our all information in its purview into the radius or the first thread. A single- determination of an unsafe condition. docket and that the agency had failed to engine airplane has six of these We did not change this AD based on link its analyses to verifiable data. cylinders, so the actual risk of a this comment. Response. We disagree. As previously separation of any one of those six Comment. Danbury Holdings noted, we have uploaded the relevant cylinders for any given airplane is 6/ commented that the FAA has not documents used in the decision-making 1,000: 1 of every 166 engines. Similarly, substantiated that the affected ECi process of this AD in Docket No. FAA– a twin-engine airplane will have 12 cylinder assemblies have separated at 32 2012–0002 (see ADDRESSES section of cylinders, so the risk of experiencing a times the rate of the OEM cylinders. this final rule for information on separation of one cylinder on a twin- Danbury Holdings stated that the FAA locating the docket). Our analysis shows engine aircraft is twice that of a single had not provided any supporting that the FAA’s actions are based on the engine, 12/1,000, 1 of every 83 twin- documentation to substantiate the data that we included in the docket. Our engine airplanes that use these model FAA’s estimate that the OEM has analysis is therefore linked to cylinders. produced approximately 4 times as ‘‘verifiable data.’’ We did not change Separation event under-reporting many cylinders as ECi did over the same this AD based on this comment. occurs. This is evidenced by RAM period of time. Danbury Holdings Comment. Danbury Holdings Aircraft’s submittal of 23 additional further commented that that the FAA commented that the FAA had failed to reported failures of the subject ECi ignores separations of other cylinder provide any evidence that cylinder cylinders after the August 12, 2013 manufacturers. separations have resulted in engine NPRM was issued. Photos of these Response. We disagree. We uploaded failures, in-flight shutdowns, and/or failures are available in Docket No. supporting information, including loss of control of an airplane and that FAA–2012–0002 (see ADDRESSES section service history, to Docket No. FAA– the agency had included accidents that of this final rule for information on 2012–0002 (see ADDRESSES section of were not the direct result of a cylinder locating the docket). The calculated this final rule for information on separation. separation rate, therefore, is likely locating the docket). We determined the Response. We disagree. A cylinder higher than what we used in our comparative failure rate of affected ECi separating from its engine is an engine analysis. Also based on service cylinders to OEM cylinders through failure. We did not change this AD experience, we expect more ECi comparing the service history of ECi based on this comment. cylinder head separations in the future. cylinders to the OEM’s since ECi Comment. RAM Aircraft commented Therefore, we concluded that the most received their PMA. That service history that it assumes that the failures of ECi appropriate assessment for the shows that the affected ECi cylinders cylinder assemblies shown in the frequency of occurrence for these have had approximately eight times as supporting document titled ‘‘ECi AD— cylinder separations is ‘‘Remote C’’; many separations over the same period Additional Failures Reported by RAM ‘‘Expected to occur infrequently.’’ of time as that of the OEM cylinders; Aircraft’’ are based on letters RAM Figure C–1 of FAA Order 8040.4A is since ECi received its PMA. We Aircraft sent to the FAA in 2013. RAM a risk matrix that yields an overall risk compared the affected ECi cylinder Aircraft, therefore, commented that this based on the severity classification and production rates from ECi, to that of the is not new information since the the assessed frequency of occurrence. OEM since ECi received its PMA. From issuance of the January 8, 2015, SNPRM. Using the FAA severity classification of ECi’s and the OEM’s production Also, of the 38 photographs of damaged ‘‘hazardous’’ and the FAA assessed information, we concluded that the cylinder assemblies, RAM Aircraft frequency of occurrence ‘‘Remote C’’, OEM has produced approximately four noted that only 23 failures actually yields an overall risk that is times as many cylinders as ECi since represent ECi cylinder assemblies. ‘‘unacceptable.’’ The corrective actions ECi received its PMA. This yields a Response. We partially agree. First, required by this final rule AD are based normalized failure rate that is we agree that the failed cylinder
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assemblies identified in the supporting cylinder assemblies, and failures, unlike ECi cylinder assembly document ‘‘ECi AD—Additional mischaracterized hazard levels in the failures, are not traceable to any specific Failures Reported by RAM Aircraft’’ do proposed ADs. design or manufacturing anomaly. In not represent new information since the RAM Aircraft also commented that its contrast, the ECi PMA cylinder issuance of the January 8, 2015, SNPRM. previous comments were dispositioned separations are traceable to design These failures are not represented in the in general categories in the January 8, deficiencies, which ECi itself identified SDR database but are consistent with 2015, SNPRM. RAM Aircraft, however, in ECi Technical Report 1102–13. We our view that failures of these cylinder does not believe that the specifics of its did not find the ECi cylinder assembly assemblies are under-reported. comments were adequately or properly design deficiencies in cylinder Second, we agree that some of the responded to, as required by the APA. assemblies produced by any other cylinder photographs uploaded to the Response. We disagree. The manufacturer. Further, ECi’s failure rate docket are not cylinder assemblies commenters failed to provide any is some 32 times greater than the OEM’s. affected by this AD. The FAA sent a examples of where we failed to comply We did not change this AD based on letter to RAM Aircraft specifically with the APA in our handling of this comment. requesting any information that RAM comments to the August 12, 2013, Comment. ARSA also indicated the Aircraft had relative to failures of ECi NPRM, and by extension, the January 8, rule is arbitrary and capricious because cylinder assemblies, P/N AEC 631397, 2015, and August 25, 2015, SNPRMs. the FAA has failed to ‘‘examine the after we learned of possible failures that We have in our responses to the NPRM relevant data and articulate a had not been reported as required by 14 and the SNPRMs, and herein in this satisfactory explanation for its action CFR 21.3. RAM Aircraft responded to final rule, fully responded to all including a ‘rational connection this request with the photographs and comments, including those comments between the facts found and the choice data that we uploaded into Docket concerning our investigation of the made.’’ Further, ARSA cites the APA as FAA–2012–0002 (see ADDRESSES section unsafe condition, hazard levels, and requiring federal agencies to allow of this final rule for information on conclusions. meaningful public participation in the locating the docket). These photographs We carefully considered all comments rulemaking process and provide a did not have any effect on our decision we received. In our January 8, 2015, ‘‘statement of basis and purpose’’ to issue this AD. We did not change this SNPRM and August 28, 2015, SNPRM, justifying a rule’s issuance.’’ ARSA we responded to several hundred AD based on this comment. notes the obligation of the FAA to comments that we had received. Many demonstrate a sound factual basis for Request To Describe FAA’s Validation were substantively the same and, the issuance of a rule by specifically Process therefore, as previously discussed we disclosing to interested parties the Comment. Danbury Holdings grouped them into several categories material upon which a prospective rule requested that the FAA provide a and answered the comments by would be fashioned. description of the validation process category. The commenters have not Response. We disagree. Beyond its that was used for each of the cylinder indicated what, if anything, is improper generalized allegation, the commenter separations that the FAA used to about doing so nor how doing as we did did not identify any examples of agency substantiate the need for this AD. might have violated the requirements of shortcoming. We examined the relevant Response. We interpret this comment the APA. In this final rule, we data, including the failure rate of the as a request for identification of how we responded to all remaining comments. ECi assemblies, the ECi cylinder found out about the failures of ECi We again used categories to group and assembly design deficiencies, and the cylinder assemblies. We found out answer comments that were similar if consequences to the engine and airplane about the ECi cylinder assembly failures not identical. As to improperly when an ECi cylinder assembly failed. from the FAA SDR database and recognizing affected ECi cylinder We reviewed and applied the applicable warranty information at ECi and RAM assemblies, we based our applicability FAA Orders and policies. The agency therefore, has articulated Aircraft, and failure reports from of this AD on the reports of failure a satisfactory explanation for its action operators. Many of the operator SDR provided by ECi, the manufacturer, the including a ‘‘rational connection reports contained detailed information reports required by 14 CFR that form the between the facts found and the choice describing the nature and specific basis for the SDR, and the reports of the made.’’ location of the separation. The findings commenters themselves. We did not change this AD based on this comment. We provided the public several of ECi Technical Report 1102–13 agreed opportunities to participate in this rule with the original failure reports. We did Request To Withdraw the SNPRMs making; through extending the comment not change this AD based on this Because They Are Arbitrary and period and the two supplemental comment. Capricious notices with their comment periods. For C. Comments to the FAA’s Rulemaking Comment. Danbury Holdings and example, we first published an NPRM Processes ARSA referred to the proposed rule as on August 12, 2013 (78 FR 48828), then ‘‘arbitrary and capricious’’ because it published an extension of the comment Request To Follow the APA does not apply equally to cylinder period on September 26, 2013 (78 FR Comment. IPL Group, RAM Aircraft, assemblies manufactured by the OEM. 59293) to allow the public additional and Danbury Holdings commented that Danbury Holdings observed that the time to comment on the proposed rule. the FAA had failed to follow the OEM’s cylinders also separate and that We then issued a notice of availability requirements of the APA when it the FAA has singled out ECi with this of an initial regulatory flexibility dispositioned previous comments to the AD action. analysis on March 12, 2014 (79 FR August 12, 2013, NPRM, and the Response. We disagree. The FAA is 13924). We reviewed the over 500 January 8, 2015, SNPRM. IPL Group not mandating similar corrective actions comments to the proposed rule that we indicated that the FAA had, for against the OEM’s cylinders because had received, determined that we example, summarily discounted OEM service history data is different. needed to review how we proposed to previous comments, failed to conduct Our review of OEM service history address the unsafe condition, formed a appropriate investigations of the failed indicates that OEM cylinder assembly team to review the technical basis of the
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proposed rule, the numerous public assemblies, but what information it for Advocacy for comment. We received comments, and the additional failure contains indicates the need for this AD. no comments from the SBA. information provided by commenters to Moreover, the SDR database is only one D. Comments to the Cost of This AD the NPRM. Through this team we tool in our decision-making process. We confirmed that an AD is needed to did not change this AD based on this Request To Revise and Provide correct the unsafe condition represented comment. Supporting Data for Number of Affected by the subject cylinder assemblies Comment. Several commenters Cylinder Assemblies and Engines installed in aircraft engines, but that we commented that the FAA should Comment. Danbury Aerospace and could do so through a lengthier withdraw the January 8, 2015, SNPRM RAM Aircraft indicated that the FAA compliance interval. We published that because it unfairly targets ECi. has under-estimated the numbers of revised compliance interval in our Response. We disagree. This AD does airplanes and engines affected and up to January 8, 2015, SNPRM. not ‘‘target’’ ECi, the PMA manufacturer After publication of the January 8, 11,000 aircraft may be affected based on of the affected cylinder assemblies. The the aircraft registry, or otherwise hasn’t 2015, SNRPM, we issued the August 28, AD resolves an unsafe condition in a 2015, SNPRM to allow us to explain the provided the data it used to determine product. We did not change this AD the affected population of engines and rationale for this AD action. We also based on this comment. added several documents to Docket No. cylinders. Response. We disagree in part. We do FAA–2012–0002 (see ADDRESSES section Request To Substantiate That This AD of this final rule for information on Does Not Affect Airplanes Operated by not agree that 11,000 aircraft may be locating the docket), including the risk Federal or State Agencies affected by this AD, or that we haven’t provided the data used to determine the analyses by our CSTA for Aircraft Safety Comment. Danbury Holdings Analysis, and one using SARA methods, affected populations. Not all aircraft and commented that the FAA had not engines on the aircraft registry use the and various technical documents that provided documentation to substantiate list failures of ECi cylinder assemblies. affected ECi cylinder assemblies. that no affected airplanes are operated Further, the commenter hasn’t provided For each of the documents we by federal or state agencies. published, we allowed the public an any factual basis for its assumption that Response. The comment is not opportunity to provide comments. We all aircraft on the aircraft registry use relevant to whether this AD is necessary did not change this AD based on this ECi cylinder assemblies. to resolve the unsafe condition comment. We agree that we could better Comment. ARSA also commented that presented by the engine with the estimate the number of engines affected presentation of relevant comments is affected ECi cylinders installed. We did by this AD. We again reviewed our further stymied by the agency’s not change this AD based on this estimate. We now estimate that conclusory and unsupported responses comment. approximately 6,200 engines are to the NPRM submissions. ARSA Request To Substantiate That Airplanes affected by this AD. That number is commented that the agency stated that Operating in Alaska Are Not Affected based on our initial estimate of it was irrelevant that the root cause of approximately 43,000 affected cylinder Comment. Danbury Holdings stated the cylinder failures is unknown and assemblies produced by ECi from 2002 that the FAA had not provided that it ‘‘disagreed’’ that pilot error was to 2011. This number is supported by documentation that substantiates that a factor. AEC Technical Report 1102–13, dated Response. We disagree. The purpose remote locations of Alaska are not April 30, 2011. We then reduced 43,000 of this AD is to remove an unsafe served by airplanes affected by this AD. by our estimated number of cylinder condition in aircraft engines, not to Response. The comment is not assemblies that would have been identify root cause of cylinder failure(s). relevant to the technical basis for this removed from service. This AD resolves the unsafe condition AD. Further we state that this AD will Our review indicates that by removing the affected cylinder not affect intrastate aviation in Alaska to approximately 6,000 of the 43,000 assemblies from service in the engine the extent that it justifies making a cylinder assemblies would have been models listed in this AD. We did not regulatory distinction. We did not retired from service by the time of the change this AD based on this comment. change this AD based on this comment. publication of this AD. Therefore, we Comment. Danbury Holdings also Request To Send Proposed Rule to estimate 37,000 cylinder assemblies commented that the FAA had not Office of Information and Regulatory may be in service, as of June 1, 2016. We provided substantiation for a change in Affairs (OIRA) and Small Business divided this number by 6 cylinders per the design requirement that ensures safe Administration (SBA) engine to give us an estimated 6,167 operation with one inoperative cylinder. engines in service. To increase the Response. The comment is not Comment. Danbury Aerospace conservatism of our cost estimate, we germane to this AD. We direct the commented that per Executive Order rounded this figure to 6,200 engines. We commenter to the regulations relevant to (E.O.) No. 13272, the FAA should revised our cost estimate to reflect these design requirements, as found in 14 provide the draft rule to the OIRA in the updated calculations. CFR. We did not withdraw the August Office of Management and Budget (OMB) under E.O. No. 12866 and to the Request To Revise the Number of Labor 28, 2015, SNPRM. Hours to Perform This AD Comment. Danbury Holdings SBA’s Chief Counsel for Advocacy. commented that the FAA has admitted Response. We partially agree. We do Comment. A few commenters, that the SDR database is problematic not agree that this rule meets the criteria including IPL Group, indicated that the and that the FAA picked and chose data of a significant regulatory action under number of hours to replace 6 cylinders to fit a conclusion. E.O. 12866. Therefore, we did not would be greater than the 18 hours that Response. We disagree. The SDR provide the draft rule to the OMB. We we estimated in our costs of database reflects input received from agree that the rule has a significant compliance. field reporting. The SDR database may effect on a substantial number of small Response. We agree. In the August 12, not reflect all service difficulty entities. We, therefore, provided a copy 2013, NPRM, and the January 8, 2015, problems with affected ECI cylinder of the rule to the SBA’s Chief Counsel and August 28, 2015, SNPRM, we
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estimated 18 work hours. Although the Request To Include Additional Costs in and reporting requirements. We commenters did not provide data to the Overall Cost Estimate withdrew our reporting requirement support increasing the number of work Comment. IPL Group and Danbury when we published the January 8, 2015, hours, we held discussions with Aerospace requested that we add SNPRM, so we have no need to account manufacturers regarding the number of additional costs to our overall cost for that cost. We added an inspection hours they would allow to perform this estimate. IPL Group indicated that the cost in this final rule for the time work. Based on these more recent FAA should include costs for loss of use operators spend determining if they discussions, we revised our estimate for of the aircraft, test flight, and break-in own an ECi cylinder assembly affected the number of work hours to replace 6 expenses. Danbury Aerospace by this AD. The Costs of Compliance cylinder assemblies to 32 hours. commented that we should account for section now states ‘‘We estimate 0.5 loss of overhauled assemblies as hours will be needed to check log books Request To Revise Cost of Replacing a replacement items and new costs to determine if an engine is affected by Cylinder Assembly in This AD associated strictly with their this AD.’’ Comment. Danbury Aerospace, replacement. E. Administrative Comments Response. We disagree. In Danbury Holdings, RAM Aircraft, and Request To Clarify Address IPL Group commented that the cost of constructing our cost estimate, we a cylinder assembly, as calculated by followed the guidance of the FAA’s Comment. The Continental Motors Airworthiness Directives Manual, FAA– the FAA, does not accurately represent Group commented that the business at IR–M–8040.1C, dated May 17, 2010, replacement costs. The commenters the address and telephone number which states ‘‘Do not state any costs indicated that the FAA’s use of ‘‘pro- listed in the August 28, 2015, SNPRM beyond initial work-hours and parts rated cost’’ allows a vast (9503 Middlex Drive, San Antonio, costs. . . .’’ The additional costs cited Texas 78217, Phone 210–820–8101) is underestimation of actual expenses that by the commenters are not appropriate would be incurred by owners. The now that of Continental Motors Inc., San to our cost estimates. We did not change Antonio. Continental Motors Group also agency must at least provide sound this AD based on this comment. reasoning and facts supporting the indicated that the associated company assertion that the pro-rated cost ‘‘more Request To Withdraw the SNPRMs Web site (http://www.eci.aero/pages/ tech_svcpubs.aspx) listed in the August accurately reflects’’ replacement cost. Because of Excessive Overall Cost 28, 2015, SNPRM is not functional at IPL Group further commented that a Comment. Several commenters this time. ‘‘pro-rated value’’ is inconsistent with commented that the FAA should FAA policy and the Regulatory withdraw the January 8, 2015, SNPRM Response. We agree. We updated the Flexibility Act. and the August 28, 2015, SNPRMs address and Web site information listed because the FAA has underestimated in the ADDRESSES and ‘‘Related Response. We disagree in part. Information’’ sections of this AD. Industry, including ECi, uses pro-rated the cost of compliance of this AD. These commenters represented that the true cost in its cost estimates. For example, Request To Provide Names of Those cost is too high and that the FAA has ECi, in its MSB 05–8, Revision No. 1, Involved in the AD Process ignored the broader impact of this AD dated December 29, 2005, used a similar on industry. Most commenters failed to Comment. Danbury Aerospace and time in service based pro-rated cost provide any data to support these Danbury Holdings commented that the calculation to determine the discounted claims, however, IPL Group provided FAA should provide the names and cost to operators for replacement some calculations to show that the total technical positions of each of the cylinders, instead of providing the cost of this AD should be somewhere members of the multi-disciplinary/ cylinders to the operators at no cost. between $168,666,625 and multi-directorate team that were Further, we typically use pro-rated cost $320,360,156. involved in the review of this service for larger, turbofan engines when life- Response. We disagree. We difficulty problem, along with the dates, limited parts are involved. Operators of considered the impact that this AD locations, and minutes for any meetings those engines are typically airlines and would have on operators. As explained that were held. other large operators. Pro rata estimating in response to the comments above, we Response. We disagree. The names therefore, is an acceptable method of increased our estimates of inspection and positions of personnel associated estimating cost. costs, labor costs, and replacement costs with reviewing this AD are not We agree however, that engines with of the cylinder assemblies. Although we necessary to the public’s participation affected ECi cylinders installed may be increased our cost estimate, we still in the development of this AD. We did installed on airplanes owned by conclude that the unsafe condition not change this AD based on this represented by the affected cylinder individual operators in the general comment. assemblies requires an AD. We did not aviation community, who are less withdraw the SNPRMs based on this F. Support for the SNPRM familiar with the concept of pro-rated comment. costs to ADs. In consequence, we Comment. The NTSB commented that revised our estimate to use the full Request To Substantiate Record-Keeping it believes that the August 28, 2015, replacement cost of each cylinder and Time Estimates SNPRM will satisfy the intent of NTSB assembly even though this will likely Comment. Danbury Holdings also Safety Recommendation A–12–7. An result in an over-estimate of the total stated that the FAA had not provided individual commenter indicated that he cost of this AD. We, therefore, used the documentation to substantiate its had reviewed the SDR database and replacement cost of 6 cylinder estimated record keeping cost and time determined that the separation rate of assemblies in this final rule. This estimates. ECi cylinder assemblies is resulted in an increase from $4,202 in Response. We agree in part. We approximately 10 times the rate of OEM the SNPRMs to $11,520 in this final interpret this comment as a reference to cylinder assemblies. rule. both time spent on checking log books Response. We note the comment.
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Conclusion and to explain the rationale for their assessment of the agency of such issues, We reviewed the relevant data, actions. The RFA covers a wide range of and a statement of any changes made in considered the comments received, and small entities, including small the proposed rule as a result of such determined that air safety and the businesses, not-for-profit organizations, comments. public interest require adopting this AD and small governmental jurisdictions. Danbury Holdings commented that as proposed. Agencies must perform a review to the FAA had not provided the raw data determine whether a proposed or final that was used in the IRFA. We note that Costs of Compliance rule will have a significant economic the provision of raw data is not required We estimate that this AD affects about impact on a substantial number of small by the FAA’s rulemaking procedures or 6,200 CMI model IO–520, TSIO–520, entities. If the agency determines that it orders. IO–550, and IOF–550 reciprocating will, the agency must prepare a In response to comments about engines and all other CMI engine regulatory flexibility analysis as problems with the repetitive models approved for the use of CMI described in the Act. The FAA compression/soap test proposed by the models –520 and –550 cylinder determined that this rule will have a NPRM, the FAA agrees that these tests assemblies (such as the CMI model –470 significant economic impact on a do not always reliably detect a cracked when modified by STC), installed on substantial number of small entities cylinder of this failure mode and airplanes of U.S. registry. The average and, accordingly, as required by Section therefore the costs associated with such labor rate is $85 per hour. We estimate 603(a) of the RFA, the FAA prepared tests outweigh the safety benefits. In the 0.5 hours will be needed to check log and published an initial regulatory January 8, 2015 SNPRM the FAA books to determine if an engine is flexibility analysis (IRFA) (79 FR 13924, removed the requirement for repetitive affected by this AD. We estimate that March 12, 2014) as part of the NPRM (79 compression/soap inspection tests. about 32 hours will be required to FR 48828, August 12, 2013) and initial The FAA received comments replace all six cylinder assemblies of an SNPRM (80 FR 1008, January 8, 2015) questioning the reduction of the engine during overhaul. We estimate the for this rule. For the second SNPRM, the estimated number of smaller air service cost of replacement of six cylinder FAA inadvertently stated that there businesses (in addition to the estimated assemblies to be, on average, about would be no significant impact on a 609 small part 135 operators) that would $11,520 per engine. Based on these substantial number of entities. We also be affected by the rule, from 5,000 in the figures, we estimate the total cost of this omitted the IRFA from the second IRFA to 2,000 in the January 8, 2015, AD to U.S. operators to change all ECi SNPRM because we thought SNPRM. We note that in both cases the cylinder assemblies to be $88,551,500. republication unnecessary as costs had FAA stated that a substantial number of not changed and the IRFA had already small entities would be affected. Given Authority for This Rulemaking been published in the first SNPRM. In the lack of available data, the FAA is Title 49 of the United States Code addition to the IRFA, Section 604 of the unable to make an accurate estimate of specifies the FAA’s authority to issue RFA also requires an agency to publish the number of smaller air service rules on aviation safety. Subtitle I, a final regulatory flexibility analysis businesses that will be affected by this section 106, describes the authority of (FRFA) in the Federal Register when rule, but acknowledges that this number the FAA Administrator. Subtitle VII: issuing a final rule. is substantial. In addition to the 609 Aviation Programs, describes in more With this FRFA we correct our small part 135 operators, we therefore detail the scope of the Agency’s misstatement in the second SNPRM and estimate in this final rule that the authority. restate our previous conclusions for the number of smaller air service businesses We are issuing this rulemaking under NPRM and in the first SNPRM that the affected is substantial. the authority described in Subtitle VII, rule will have a significant impact on a After publication of the NPRM and Part A, Subpart III, Section 44701: substantial number of small entities. after publication of each of the two ‘‘General requirements.’’ Under that Accordingly, in the following section SNPRMs, we also received comments section, Congress charges the FAA with we undertake the regulatory flexibility from small businesses concerning promoting safe flight of civil aircraft in analysis. understated compliance costs. Some air commerce by prescribing regulations commenters stated that the labor rate for practices, methods, and procedures Final Regulatory Flexibility Analysis and the hours required to replace an the Administrator finds necessary for Under Section 604(a) of the RFA, the affected engine’s cylinders are safety in air commerce. This regulation Final analysis must address: underestimated. We agree with this is within the scope of that authority (1) Statement of the need for, and comment in part and have increased our because it addresses an unsafe condition objectives of, the rule. estimate of the labor hours required to that is likely to exist or develop on This final rule AD was prompted by replace an affected engine’s six cylinder products identified in this rulemaking failure reports of multiple cylinder assemblies from 18 to 32 hours, with a action. head-to-barrel separations and cracked corresponding labor cost increase from and leaking aluminum cylinder heads. $1,530 to $2,720. Regulatory Flexibility Determination This AD will apply to certain CMI San In response to comments we have also The Regulatory Flexibility Act of 1980 Antonio replacement PMA cylinder increased our cost of materials estimate (RFA) establishes ‘‘as a principle of assemblies marketed by ECi, used on the from a loss-of-service estimate of $4,202 regulatory issuance that agencies shall CMI model –520 and –550 reciprocating to the full cost to replace all six endeavor, consistent with the objective engines, and all other engine models cylinders, which has increased to of the rule and of applicable statutes, to approved for the use of CMI model –520 $11,520. Our estimate of the total cost fit regulatory and informational and –550 cylinder assemblies such as to replace all six cylinders has therefore requirements to the scale of the the CMI model –470 when modified by increased from $5,732 to $14,240. business, organizations, and STC. After publication of the August 28, governmental jurisdictions subject to (2) Statement of the significant issues 2015, SNPRM, we received negative regulation.’’ To achieve that principle, raised by the public comments in comments concerning the inadvertent the RFA requires agencies to solicit and response to the initial regulatory change from our original determination consider flexible regulatory proposals flexibility analysis, a statement of the of a significant economic impact on a
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substantial number of small entities in As noted above our estimate of the to the August 28, 2015, SNPRM, that the the IRFA (and the January 8, 2015, total cost to replace all six cylinders has revised rule as adopted in this final rule, SNPRM) to a determination of no increased from $5,732 to $14,240. As meets the intent of its Safety significant impact on a substantial the number of airplanes held by affected Recommendations A–12–7. number of small entities. As noted in small part 135 operators ranges from (c) Forced removal with periodic the introductory section, we are one to 88, the costs of required cylinder inspections—Periodic inspections may correcting this oversight in this FRFA. assembly replacement per operator not reliably detect cracks and even with (3) The response of the agency to any range from about $14.2 thousand to removal the rate of crack growth to comments filed by the Chief Counsel for about $1.3 million. separation is unknown and variable. Advocacy of the Small Business To determine whether compliance Forced removal is the only remaining Administration in response to the costs will have a significant economic option. impact, we measured the cost of proposed rule, and a detailed statement Regulatory Findings of any change made to the proposed replacing cylinder assemblies of affected rule in the final rule as a result of the engines relative to the value of the This AD will not have federalism comments. affected airplanes held by the small part implications under Executive Order The SBA did not submit comments. 135 operators. The estimated asset value 13132. This AD will not have a (4) Description and an estimated of the affected airplanes held by the substantial direct effect on the States, on number of small entities to which the small part 135 operators ranges from the relationship between the national final rule will apply. $22,000 to $19.6 million. We find that government and the States, or on the Of the 610 part 135 operators we the cost of replacing cylinder assemblies distribution of power and found to be affected by this rule, we relative to affected airplane asset value responsibilities among the various identified 609 that meet the Small is greater than 5 percent for 468 of the levels of government. Business Administration (SBA) 609 affected small part 135 operators.2 For the reasons discussed above, I definition of a small entity (entities with We therefore conclude that the final rule certify that this AD: 1,500 or fewer employees) that will be will have a significant economic impact (1) Is not a ‘‘significant regulatory affected by this final rule. On this basis on a substantial number of small action’’ under Executive Order 12866, alone, we conclude that the final rule entities. (2) Is not a ‘‘significant rule’’ under will affect a substantial number of small (6) Steps the agency has taken to DOT Regulatory Policies and Procedures entities. In addition, we estimate that a minimize the significant economic (44 FR 11034, February 26, 1979), (3) Will not affect intrastate aviation substantial, but undetermined number impact on small entities consistent with in Alaska to the extent that it justifies of smaller air services businesses will be the stated objectives of applicable statutes, including a statement of the making a regulatory distinction, and affected by this final rule. The FAA is (4) Will have a significant economic factual, policy, and legal reasons for unaware of the assets or financial impact, positive or negative, on a selecting the alternative adopted in the resources of these businesses. The substantial number of small entities final rule and why each one of the other affected part 135 and smaller air under the criteria of the Regulatory significant alternatives to the rule services fly fixed wing aircraft; employ Flexibility Act. less than 1,500 employees; and conduct considered by the agency which affect a variety of air services such as fly the impact on small entities was List of Subjects in 14 CFR Part 39 passengers and cargo for hire. rejected. Air transportation, Aircraft, Aviation (5) Description of the record keeping In response to comments about safety, Incorporation by reference, and other compliance requirements of problems with repetitive compression/ Safety. the final rule. soap test, the FAA agrees that these tests do not always reliably detect a cracked Adoption of the Amendment Record Keeping Requirement cylinder of this failure mode and the Accordingly, under the authority The FAA estimates 0.5 hours will be costs associated with such tests delegated to me by the Administrator, needed to check log books to determine outweigh the safety benefit. The FAA the FAA amends 14 CFR part 39 as if an engine is affected by this AD. At removed that requirement for repetitive follows: a wage rate of $85 per hour, the compression/soap inspection tests. We estimated cost will be $42.50 per also considered these following PART 39—AIRWORTHINESS engine. As the affected small part 135 alternatives: DIRECTIVES operators have between one and 88 (a) Do nothing—This option is not affected airplanes, the costs of this acceptable due to the number of failures ■ 1. The authority citation for part 39 requirement range from $42.50 to $3740 of ECi cylinder head assemblies and the continues to read as follows: per part 135 operator. consequences of the failures. Authority: 49 U.S.C. 106(g), 40113, 44701. (b) Periodic inspections only (no Compliance Requirement To Replace forced removals)—Though the NTSB § 39.13 [Amended] Cylinder Assemblies of Affected recommended this option in its ■ 2. The FAA amends § 39.13 by adding Engines comments to the NPRM (August 12, the following new airworthiness This AD applies to certain CMI model 2013, 78 FR 48828), the service history directive (AD): has shown that such inspections may IO–520, TSIO–520, IO–550, and IOF– 2016–16–12 Continental Motors, Inc. 550 reciprocating engines and all other not reliably detect existing cracks and (formerly Teledyne Continental Motors, engine models approved for the use of the rate of crack growth to separation is Inc., formerly Continental): Amendment CMI models -520 and -550 cylinder unknown and variable. The NTSB also 39–18610; Docket No. FAA–2012–0002; assemblies (such as the CMI model -470 submitted a later comment, in response Directorate Identifier 2011–NE–42–AD. when modified by STC), installed on (a) Effective Date airplanes of U.S. registry. For the 2 This assessment does not take into account record keeping requirement costs. These costs, This AD is effective September 15, 2016. affected engines the AD requires however, are minor and do not affect our replacement of the cylinder assemblies assessment of the number of small part 121 (b) Affected ADs at reduced times-in-service. operators significantly impacted by the final rule. None.
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(c) Applicability (5) Removal From Service Issued in Burlington Massachusetts, on This AD applies to all Continental Motors, (i) For any affected cylinder assembly with July 19, 2016. Inc. (CMI) model –520 and –550 680 or fewer operating hours time-in-service Colleen M. D’Alessandro, reciprocating engines, and to all other CMI (TIS) since new on the effective date of this Manager, Engine & Propeller Directorate, engine models approved for the use of model AD, remove the cylinder assembly from Aircraft Certification Service. –520 and –550 cylinder assemblies such as service before reaching 1,000 operating hours [FR Doc. 2016–18708 Filed 8–10–16; 8:45 am] the CMI model –470 when modified by TIS since new. supplemental type certificate (STC), with (ii) For any affected cylinder assembly with BILLING CODE 4910–13–P Continental Motors Inc., San Antonio more than 680 operating hours TIS since new (formerly Airmotive Engineering Corp.), and 1,000 or fewer operating hours TIS since replacement parts manufacturer approval new on the effective date of this AD, remove DEPARTMENT OF TRANSPORTATION (PMA) cylinder assemblies, marketed by the cylinder assembly from service within Engine Components International Division the next 320 operating hours TIS or within Federal Aviation Administration (hereinafter referred to as ECi), part number 1,160 operating hours TIS since new, (P/N) AEC 631397, with ECi Class 71 or Class whichever occurs first. 14 CFR Part 71 76, serial number (S/N) 1 through S/N 61176, (iii) For any affected cylinder assembly [Docket No. FAA–2016–5856; Airspace installed. with more than 1,000 operating hours TIS Docket No. 16–AGL–9] (d) Unsafe Condition since new on the effective date of this AD, This AD was prompted by multiple failure remove the cylinder assembly from service Establishment of Class E Airspace; reports of cylinder head-to-barrel separations within the next 160 operating hours or at Park River, ND and cracked and leaking aluminum cylinder next engine overhaul, whichever occurs first. heads. We are issuing this AD to prevent (iv) For any affected cylinder assembly that AGENCY: Federal Aviation failure of the cylinder assemblies, which has been overhauled, remove the cylinder Administration (FAA), DOT. could lead to failure of the engine, in-flight assembly from service within the next 80 ACTION: Final rule. shutdown, and loss of control of the airplane. operating hours TIS after the effective date of this AD. (e) Compliance SUMMARY: This action establishes Class Comply with this AD within the (f) Installation Prohibitions E airspace in Park River, ND. Controlled compliance times specified, unless already After the effective date of this AD: airspace is necessary to accommodate done. (1) Do not repair, or reinstall onto any new Standard Instrument Approach (1) Review the engine maintenance records engine, any cylinder assembly removed per Procedures developed at Park River-W C to determine if any affected cylinder this AD. Skjerven Field, Park River, ND, for the assemblies are installed. (2) Do not install any affected ECi cylinder safety and management of Instrument (2) If you cannot determine based on assembly that has been overhauled, into any Flight Rules (IFR) operations at the review of engine maintenance records if any engine. affected cylinder assemblies are installed, airport. Additionally, to correct airport (3) Do not install any engine that has one name to correspond with the NASR in comply with paragraph (e)(4) of this AD. or more affected overhauled ECi cylinder (3) If you do not have any of the affected assemblies, onto any aircraft. the header and legal description. ECi cylinder assemblies installed on your (4) Do not return to service any aircraft that DATES: Effective 0901 UTC, November engine, no further action is required. has an engine installed with an ECi cylinder 10, 2016. The Director of the Federal (4) Cylinder Identification and Serial assembly subject to this AD, if the cylinder Number Location Register approves this incorporation by (i) Check the cylinder assembly P/N and assembly has 1,000 or more operating hours reference action under title 1, Code of Class number. The ECi cylinder assembly, P/ TIS. Federal Regulations, part 51, subject to N AEC 631397, Class 71 or Class 76, is (g) Alternative Methods of Compliance the annual revision of FAA Order stamped on the bottom flange of the cylinder (AMOCs) 7400.9 and publication of conforming barrel. Guidance on the P/N and Class amendments. number description and location can be The Manager, Delegation Systems found in ECi Service Instruction No. 99–8– Certification Office or Fort Worth Aircraft ADDRESSES: FAA Order 7400.9Z, 1, Revision 9, dated February 23, 2009. Certification Office, may approve AMOCs for Airspace Designations and Reporting (ii) If you cannot see the cylinder assembly this AD. Use the procedures found in 14 CFR Points, and subsequent amendments can P/N when the cylinder assembly is installed 39.19 to make your request. be viewed on line at http:// on the engine, you may use the following (h) Related Information www.faa.gov/air_traffic/publications/. alternative method of identification: For further information, you can contact (A) Remove the cylinder assembly rocker (1) For more information about this AD, box cover. contact Jurgen E. Priester, Aerospace the Airspace Policy Group, Federal (B) Find the letters ECi, cast into the Engineer, Delegation Systems Certification Aviation Administration, 800 cylinder head between the valve stems. Office, FAA, Rotorcraft Directorate, 10101 Independence Avenue SW., (C) Check the cylinder head casting P/N. Hillwood Parkway, Fort Worth, TX 76177; Washington, DC, 20591; telephone: 202– Affected cylinder assemblies have the phone: 817–222–5190; fax: 817–222–5785; 267–8783. The Order is also available cylinder head casting, P/N AEC 65385, cast email: [email protected]. for inspection at the National Archives into the cylinder head between the valve (2) For ECi Service Instruction No. 99–8– and Records Administration (NARA). 1, Revision 9, dated February 23, 2009, stems. For information on the availability of (D) Find the cylinder assembly S/N as which is not incorporated by reference in this specified in paragraphs (e)(4)(iii) or (e)(4)(iv) AD, contact Continental Motors—San this material at NARA, call 202–741– of this AD, as applicable. Antonio, 9503 Middlex Drive, San Antonio, 6030, or go to http://www.archives.gov/ (iii) For ECi cylinder assemblies, P/N AEC TX 78217; phone: 210–820–8101; Internet: federal_register/code_of_federal- 631397, manufactured through 2008, find the http://www.continentalsanantonio.com. regulations/ibr_locations.html. cylinder assembly S/N stamped on the intake (3) You may view this service information FAA Order 7400.9, Airspace port boss two inches down from the top edge at the FAA, Engine & Propeller Directorate, Designations and Reporting Points, is of the head. 1200 District Avenue, Burlington, MA. For published yearly and effective on (iv) For ECi cylinder assemblies, P/N AEC information on the availability of this September 15. 631397, manufactured on or after January 1, material at the FAA, call 781–238–7125. 2009, find the cylinder assembly S/N FOR FURTHER INFORMATION CONTACT: stamped just below the top edge of the head (i) Material Incorporated by Reference Rebecca Shelby, Federal Aviation on the exhaust port side. None. Administration, Operations Support
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Group, Central Service Center, 10101 approach procedures. Controlled PART 71—DESIGNATION OF CLASS A, Hillwood Parkway, Fort Worth, TX, airspace is needed for the safety and B, C, D, AND E AIRSPACE AREAS; AIR 76177; telephone (817) 222–5857. management of IFR operations at the TRAFFIC SERVICE ROUTES; AND SUPPLEMENTARY INFORMATION: airport. Additionally, this corrects the REPORTING POINTS airport name to coordinate with the Authority for This Rulemaking ■ NASR, previously listed in the NPRM 1. The authority citation for Part 71 The FAA’s authority to issue rules header and legal description as Park continues to read as follows: regarding aviation safety is found in River Airport-WC Skjerven Field to Park Authority: 49 U.S.C. 106(f), 106(g); 40103, Title 49 of the United States Code. River-W C Skjerven Field. 40113, 40120, E.O. 10854, 24 FR 9565, 3 CFR, Subtitle I, Section 106 describes the 1959–1963 Comp., p. 389. authority of the FAA Administrator. Class E airspace areas are published Subtitle VII, Aviation Programs, in Section 6005 of FAA Order 7400.9Z, § 71.1 [Amended] describes in more detail the scope of the dated August 6, 2015, and effective ■ 2. The incorporation by reference in agency’s authority. This rulemaking is September 15, 2015, which is 14 CFR 71.1 of FAA Order 7400.9Z, promulgated under the authority incorporated by reference in 14 CFR Airspace Designations and Reporting described in Subtitle VII, Part, A, 71.1. The Class E airspace designations Points, dated August 6, 2015, effective Subpart I, Section 40103. Under that listed in this document will be September 15, 2015, is amended as section, the FAA is charged with published subsequently in the Order. follows: prescribing regulations to assign the use Regulatory Notices and Analyses Paragraph 6005 Class E Airspace Areas of airspace necessary to ensure the Extending Upward From 700 Feet or More safety of aircraft and the efficient use of The FAA has determined that this Above the Surface of the Earth. airspace. This regulation is within the regulation only involves an established * * * * * scope of that authority as it establishes body of technical regulations for which AGL ND E5 Park River, ND [New] controlled airspace at Park River-W C frequent and routine amendments are Skjerven Field, Park River, ND. Park River–W C Skjerven Field necessary to keep them operationally (Lat. 48°23′39″ N., long. 097°46′51″ W.) History current, is non-controversial and That airspace extending upward from 700 On May 24, 2016, the FAA published unlikely to result in adverse or negative feet above the surface within a 7-mile radius in the Federal Register a notice of comments. It, therefore: (1) Is not a of Park River–W C Skjerven Field. proposed rulemaking (NPRM) to ‘‘significant regulatory action’’ under Issued in Fort Worth, TX, on July 28, 2016. Executive Order 12866; (2) is not a establish Class E Airspace in the Park Walter Tweedy, ‘‘significant rule’’ under DOT River, ND area. (81 FR 32679) FAA– Acting Manager, Operations Support Group, 2016–5856. Interested parties were Regulatory Policies and Procedures (44 ATO Central Service Center. FR 11034; February 26, 1979); and (3) invited to participate in this rulemaking [FR Doc. 2016–18772 Filed 8–10–16; 8:45 am] effort by submitting written comments does not warrant preparation of a BILLING CODE 4910–13–P on the proposal to the FAA. No Regulatory Evaluation as the anticipated comments were received. impact is so minimal. Since this is a Class E airspace designations are routine matter that only affects air traffic DEPARTMENT OF TRANSPORTATION published in paragraph 6005 of FAA procedures and air navigation, it is Order 7400.9Z dated August 6, 2015, certified that this rule, when Federal Aviation Administration and effective September 15, 2015, which promulgated, does not have a significant is incorporated by reference in 14 CFR economic impact on a substantial 14 CFR Part 71 part 71.1. The Class E airspace number of small entities under the designations listed in this document [Docket No. FAA–2016–4629; Airspace criteria of the Regulatory Flexibility Act. Docket No. 16–AGL–8] will be published subsequently in the Order. Environmental Review Amendment of Class E Airspace for Availability and Summary of The FAA has determined that this the Following Michigan Towns; Alma, Documents for Incorporation by action qualifies for categorical exclusion MI; Bellaire, MI; Cadillac, MI; Reference under the National Environmental Drummond Island, MI; Gladwin, MI; Holland, MI; and Three Rivers, MI This document amends FAA Order Policy Act in accordance with FAA 7400.9Z, airspace Designations and Order 1050.1F, ‘‘Environmental AGENCY: Federal Aviation Reporting Points, dated August 6, 2015, Impacts: Policies and Procedures,’’ Administration (FAA), DOT. and effective September 15, 2015. FAA paragraph 5–6.5a. This airspace action ACTION: Final rule. Order 7400.9Z is publicly available as is not expected to cause any potentially listed in the ADDRESSES section of this significant environmental impacts, and SUMMARY: This action modifies Class E document. FAA Order 7400.9Z lists no extraordinary circumstances exists airspace extending upward from 700 Class A, B, C, D, and E airspace areas, that warrant preparation of an feet above the surface at Gratiot air traffic service routes, and reporting environmental assessment. Community Airport, Alma, MI; Antrim points. County Airport, Bellaire, MI; Wexford Lists of Subjects in 14 CFR Part 71 County Airport, Cadillac, MI; The Rule Drummond Island Airport, Drummond This amendment to Title 14, Code of Airspace, Incorporation by reference, Island, MI; Charles C. Zettel Memorial Federal Regulations (14 CFR) part 71 Navigation (air). Airport, Gladwin, MI; Park Township establishes Class E airspace extending Adoption of the Amendment Airport and West Michigan Regional upward from 700 feet above the surface Airport, Holland, MI; and Three Rivers within a 7-mile radius of Park River-W In consideration of the foregoing, the Municipal Dr. Haines Airport, Three C Skjerven Field, Park River, ND, to Federal Aviation Administration Rivers, MI. Decommissioning of non- accommodate new standard instrument amends 14 CFR part 71 as follows: directional radio beacons (NDB),
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cancellation of NDB approaches, or scope of that authority as it amends Within a 6.5-mile radius of implementation of area navigation Class E airspace at Gratiot Community Drummond Island Airport, Drummond (RNAV) procedures have made this Airport, Alma, MI; Antrim County Island, MI, with a segment extending action necessary for the safety and Airport, Bellaire, MI; Wexford County from the 6.5-mile radius to 8.5 miles management of Instrument Flight Rules Airport, Cadillac, MI; Drummond Island east of the airport; (IFR) operations at the above airports. Airport, Drummond Island, MI; Charles Within a 6.5-mile radius of Charles C. This action also updates the geographic C. Zettel Memorial Airport, Gladwin, Zettel Memorial Airport, Gladwin, MI; coordinates of Three Rivers Municipal MI; Park Township Airport and West Within a 6.5-mile radius of West Dr. Haines Airport, and the name Michigan Regional Airport, Holland, MI; Michigan Regional Airport (formerly change of West Michigan Regional and Three Rivers Municipal Dr. Haines Tulip City Airport), Holland, MI; Park Airport (formerly Tulip City Airport) to Airport, Three Rivers, MI. coincide with the FAA’s aeronautical Township Airport is removed as it no database. History longer has instrument procedures and no longer requires Class E airspace; and DATES: Effective 0901 UTC, November On May 3, 2016, the FAA published Within a 6.4 mile radius of Three 10, 2016. The Director of the Federal in the Federal Register a notice of Rivers Municipal Dr. Haines Airport, Register approves this incorporation by proposed rulemaking (NPRM) to modify Three Rivers, MI, and updates the reference action under Title 1, Code of Class E airspace at Gratiot Community geographic coordinates of this airport to Federal Regulations, part 51, subject to Airport, Alma, MI; Antrim County the annual revision of FAA Order Airport, Bellaire, MI; Wexford County coincide with the FAAs aeronautical 7400.9 and publication of conforming Airport, Cadillac, MI; Drummond Island database. amendments. Airport, Drummond Island, MI; Charles These airspace reconfigurations are C. Zettel Memorial Airport, Gladwin, necessary due to the decommissioning ADDRESSES: FAA Order 7400.9Z, MI; Park Township Airport and West of NDBs, cancellation of NDB Airspace Designations and Reporting Michigan Regional Airport, Holland, MI; approaches, or implementation of Points, and subsequent amendments can RNAV procedures at the above airports. be viewed online at http://www.faa.gov/ and Three Rivers Municipal Dr. Haines Controlled airspace is necessary for the air_traffic/publications/. For further Airport, Three Rivers, MI (81 FR 26501) safety and management of the standard information, you can contact the Docket No. FAA–2016–4629. Interested instrument approach procedures for IFR Airspace Policy Group, Federal Aviation parties were invited to participate in Administration, 800 Independence this rulemaking effort by submitting operations at the airports. written comments on the proposal to the Avenue SW., Washington, DC 20591; Regulatory Notices and Analyses telephone: 202–267–8783. The Order is FAA. No comments were received. also available for inspection at the Class E airspace designations are The FAA has determined that this National Archives and Records published in paragraph 6005 of FAA regulation only involves an established Administration (NARA). For Order 7400.9Z, dated August 6, 2015, body of technical regulations for which information on the availability of FAA and effective September 15, 2015, which frequent and routine amendments are Order 7400.9Z at NARA, call 202–741– is incorporated by reference in 14 CFR necessary to keep them operationally 6030, or go to http://www.archives.gov/ part 71.1. The Class E airspace current, is non-controversial and federal_register/code_of_federal- designation listed in this document will unlikely to result in adverse or negative regulations/ibr_locations.html. be published subsequently in the Order. comments. It, therefore: (1) Is not a ‘‘significant regulatory action’’ under FAA Order 7400.9, Airspace Availability and Summary of Executive Order 12866; (2) is not a Designations and Reporting Points, is Documents for Incorporation by ‘‘significant rule’’ under DOT published yearly and effective on Reference September 15. Regulatory Policies and Procedures (44 FOR FURTHER INFORMATION CONTACT: This document amends FAA Order FR 11034; February 26, 1979); and (3) Jeffrey Claypool, Federal Aviation 7400.9Z, Airspace Designations and does not warrant preparation of a Administration, Operations Support Reporting Points, dated August 6, 2015, Regulatory Evaluation as the anticipated Group, Central Service Center, 10101 and effective September 15, 2015. FAA impact is so minimal. Since this is a Hillwood Parkway, Fort Worth, TX Order 7400.9Z is publicly available as routine matter that only affects air traffic 76177; telephone (817) 222–5711. listed in the ADDRESSES section of this procedures and air navigation, it is SUPPLEMENTARY INFORMATION: document. FAA Order 7400.9Z lists certified that this rule, when Class A, B, C, D, and E airspace areas, promulgated, does not have a significant Authority for This Rulemaking air traffic service routes, and reporting economic impact on a substantial The FAA’s authority to issue rules points. number of small entities under the criteria of the Regulatory Flexibility Act. regarding aviation safety is found in The Rule Title 49 of the United States Code. Environmental Review Subtitle I, Section 106 describes the This amendment to Title 14, Code of authority of the FAA Administrator. Federal Regulations (14 CFR) part 71 The FAA has determined that this Subtitle VII, Aviation Programs, modifies Class E airspace extending action qualifies for categorical exclusion describes in more detail the scope of the upward from 700 feet above the surface under the National Environmental agency’s authority. This rulemaking is at the following airports: Policy Act in accordance with FAA promulgated under the authority Within a 6.5-mile radius of Gratiot Order 1050.1F, ‘‘Environmental described in Subtitle VII, Part A, Community Airport, Alma, MI; Impacts: Policies and Procedures,’’ Subpart I, Section 40103. Under that Within a 6.5-mile radius of Antrim paragraph 5–6.5.a. This airspace action section, the FAA is charged with County Airport, Bellaire, MI, with a is not expected to cause any potentially prescribing regulations to assign the use segment extending from the 6.5-mile significant environmental impacts, and of airspace necessary to ensure the radius to 6.9 miles south of the airport; no extraordinary circumstances exist safety of aircraft and the efficient use of Within a 6.7-mile radius of Wexford that warrant preparation of an airspace. This regulation is within the County Airport, Cadillac, MI; environmental assessment.
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Lists of Subjects in 14 CFR Part 71 (Lat. 46° 00′34″ N., long. 83° 44′38″ W.) regulations to correct an error in the Airspace, Incorporation by reference, That airspace extending upward from 700 lists of statutory and regulatory Navigation (air). feet above the surface within a 6.5-mile provisions that provide an opportunity radius of Drummond Island Airport, and for an informal hearing so that the lists Adoption of the Amendment within 4 miles each side of the 072° bearing correctly reference the statutory and from the airport extending from the 6.5-mile In consideration of the foregoing, the regulatory provisions that provide such radius to 8.5 miles east of the airport; that an opportunity in connection with a ban Federal Aviation Administration airspace extending upward from 1,200 feet amends 14 CFR part 71 as follows: above the surface bounded by long. 83° of a device. This action is being taken 57’00’’ W., on the west; long. 83° 26’00’’ W., to align the regulations with the Federal PART 71—DESIGNATION OF CLASS A, on the east; lat. 46° 05’00’’ N., on the north; Food, Drug, and Cosmetic Act (the B, C, D, AND E AIRSPACE AREAS; AIR and lat. 45° 45’00’’ N., on the south, FD&C Act) and avoid any potential TRAFFIC SERVICE ROUTES; AND excluding that airspace within Canada. confusion the erroneous lists may cause. REPORTING POINTS * * * * * DATES: This rule is effective August 11, 2016. ■ 1. The authority citation for part 71 AGL MI E5 Gladwin, MI [Amended] FOR FURTHER INFORMATION CONTACT: Ian continues to read as follows: Charles C. Zettel Memorial Airport, MI Ostermiller, Center for Devices and (Lat. 43°58′14″ N., long. 84°28′30″ W.) Authority: 49 U.S.C. 106(f), 106(g); 40103, Radiological Health, Food and Drug 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, That airspace extending upward from 700 Administration, 10903 New Hampshire 1959–1963 Comp., p. 389. feet above the surface within a 6.5-mile radius of the Charles C. Zettel Memorial Ave., Bldg. 66, Rm. 5515, Silver Spring, § 71.1 [Amended] Airport. MD 20993–0002, 301–796–5678. ■ 2. The incorporation by reference in * * * * * SUPPLEMENTARY INFORMATION: FDA is correcting an error in the regulations 14 CFR 71.1 of FAA Order 7400.9Z, AGL MI E5 Holland, MI [Amended] Airspace Designations and Reporting that identify the statutory and regulatory Points, dated August 6, 2015, and West Michigan Regional Airport, MI provisions that provide an opportunity (Lat. 42°44′34″ N., long. 86°06′28″ W.) effective September 15, 2015, is for a regulatory hearing, also known as amended as follows: That airspace extending upward from 700 an informal hearing (§ 16.1 (21 CFR feet above the surface within a 6.5-mile 16.1)). In the list of statutory provisions radius of the West Michigan Regional Paragraph 6005 Class E Airspace Areas at § 16.1(b)(1), the Agency is adding a Airport. Extending Upward From 700 Feet or More reference to subsection (b) of section Above the Surface of the Earth. * * * * * 516 of the FD&C Act (21 U.S.C. 360f), * * * * * AGL MI E5 Three Rivers, MI [Amended] which provides for a reasonable opportunity for an informal hearing AGL MI E5 Alma, MI [Amended] Three Rivers Municipal Dr Haines Airport, MI when FDA proposes a medical device Alma, Gratiot Community Airport, MI ° ′ ″ ° ′ ″ ban with a special effective date (21 (Lat. 43°19′20″ N., long. 84°41′17″ W.) (Lat. 41 57 35 N., long. 85 35 35 W.) Mount Pleasant VOR/DME That airspace extending upward from 700 U.S.C. 360f(b)(2)). The list of statutory (Lat. 43°37′22″ N., long. 84°44′14″ W.) feet above the surface within a 6.4-mile provisions does not currently specify That airspace extending upward from 700 radius of Three Rivers Municipal Dr Haines subsection (b) of section 516 of the feet above the surface within a 6.5-mile Airport, excluding that airspace within the FD&C Act, and it incorrectly refers to 21 radius of Gratiot Community Airport, and Sturgis, Kirsch Municipal Airport, MI, Class CFR 895.21(d). An opportunity for a within 2.0 miles either side of a 270° bearing E airspace area. hearing is not required under section from the airport extending from the 6.5-mile Issued in Fort Worth, Texas, on July 29, 516 of the FD&C Act or part 895 (21 CFR radius to 10.1 miles west of the airport, and 2016. part 895) for bans that do not have a within 1.5 miles either side of the Mount Walter Tweedy, special effective date. Pleasant VOR/DME 178° radial extending Acting Manager, Operations Support Group, Further, the list of regulatory from the 6.5-mile radius to 10.3 miles north provisions at § 16.1(b)(2) does not of the airport. ATO Central Service Center. include any reference to part 895. We * * * * * [FR Doc. 2016–18777 Filed 8–10–16; 8:45 am] BILLING CODE 4910–13–P are correcting this by adding a reference AGL MI E5 Bellaire, MI [Amended] to § 895.30(c), which provides for an Bellaire, Antrim County Airport, MI opportunity for an informal hearing (Lat. 44°59′19″ N., long. 85°11′54″ W.) DEPARTMENT OF HEALTH AND under 21 CFR part 16 when FDA That airspace extending upward from 700 HUMAN SERVICES proposes a medical device ban with a feet above the surface within a 6.5-mile special effective date. These corrections radius of Antrim County Airport, and within Food and Drug Administration will align § 16.1(b) with section 516 of 1.9 miles each side of the 197° bearing from the FD&C Act and part 895 to avoid the airport extending from the 6.5-mile 21 CFR Part 16 confusion regarding when an radius to 6.9 miles south of the airport. opportunity for hearing is required for a * * * * * [Docket No. FDA–2016–N–0011] device ban. Prior to the Safe Medical Devices Act AGL MI E5 Cadillac, MI [Amended] Regulatory Hearing Before the Food of 1990 (SMDA) (Pub. L. 101–629), the Cadillac, Wexford County Airport, MI and Drug Administration; General FD&C Act required the Secretary of (Lat. 44°16′31″ N., long. 85°25′08″ W.) Provisions; Technical Amendment Health and Human Services to afford an That airspace extending upward from 700 feet above the surface within a 6.7-mile AGENCY: Food and Drug Administration, opportunity for informal hearings about radius of the Wexford County Airport. HHS. any proposed rule to ban a medical device, regardless of effective date. One * * * * * ACTION: Final rule; technical amendment. of the SMDA’s provisions removed the AGL MI E5 Drummond Island, MI requirement that FDA provide an [Amended] SUMMARY: The Food and Drug opportunity for an informal hearing Drummond Island Airport, MI Administration (FDA) is amending its when FDA does not establish a special
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effective date for a proposed ban.1 to§ 895.30(c) is merely technical, ■ b. In paragraph (b)(2), add an entry in However, the SMDA did not eliminate insignificant in nature and impact, and numerical sequence for ‘‘§ 895.30(c), the informal hearing provision for a inconsequential to industry and the regarding a proposed regulation to ban proposed ban issued with a special public. See Mack Trucks, Inc. v. EPA, a medical device with a special effective effective date. Thus, section 516(b) of 682 F.3d 87, 94 (D.C. Cir. 2012). This is date.’’ the FD&C Act continues to require that because this correction in no way Dated: August 3, 2016. FDA ‘‘provide reasonable opportunity changes when FDA is required to Leslie Kux, for an informal hearing’’ on a proposed provide an opportunity for a hearing, Associate Commissioner for Policy. ban with a special effective date (21 which is determined by section 516 of U.S.C. 360f(b)) while subsection (a), the the FD&C Act and part 895, nor does it [FR Doc. 2016–18787 Filed 8–10–16; 8:45 am] general rule for medical device bans, impact the availability of such a hearing BILLING CODE 4164–01–P does not (see 21 U.S.C. 360f(a)). to any entity impacted by the proposed On December 10, 1992 (57 FR 58400), ban. It merely corrects a citation error to DEPARTMENT OF HEALTH AND FDA published a final rule avoid confusion. This amendment to HUMAN SERVICES implementing the SMDA. The final rule § 16.1(b) thus merely corrects the of 1992 amended § 895.21(d), which references to the applicable Food and Drug Administration covers the procedures for issuing a ban requirements of the FD&C Act and its without a special effective date, by implementing regulations, making 21 CFR Part 514 removing the requirement that FDA notice-and-comment procedures provide an opportunity for an informal unnecessary in this case. Therefore, hearing when there is no special publication of this document constitutes [Docket No. FDA–2016–N–1943] 2 effective date. FDA incorrectly final action on this change under the New Animal Drug Applications; removed the same language from Administrative Procedure Act (APA) (5 Contents of Notice of Opportunity for § 895.30, which covers the procedures U.S.C. 553). a Hearing; Correction for issuing bans with special effective In addition, FDA finds good cause for dates; the Agency issued a technical this amendment to become effective on AGENCY: Food and Drug Administration, amendment restoring this language in the date of publication of this action. HHS. the Federal Register of June 2, 2015 (80 The APA allows an effective date less ACTION: Final rule; correcting FR 31299). However, FDA did not than 30 days after publication as amendments. correct the language in § 16.1 to list ‘‘provided by the agency for good cause section 516(b) of the FD&C Act and found and published with the rule’’ (5 SUMMARY: The Food and Drug § 895.30(c) as the provisions that U.S.C. 553(d)(3)). A delayed effective Administration (FDA, the Agency, or provide for regulatory (informal) date is unnecessary in this case because we) is making technical corrections to hearings, nor did the Agency remove the the amendment to § 16.1 does not its regulations for hearing procedures reference to § 895.21(d). FDA does so impose any new regulatory for denial of approval or withdrawal of now. requirements on affected parties. As a approval of new animal drug FDA finds good cause for issuing this result, affected parties do not need time applications. The Agency is taking this amendment to § 16.1(b)(1) as a final rule to prepare before the rule takes effect. action to harmonize terminology and to without notice and comment because Therefore, FDA finds good cause for this improve the organization and clarity of this amendment corrects the regulations correction to become effective on the the regulations. to restate the statute (5 U.S.C. 553(b)(B)). date of publication of this action. DATES: This rule is effective August 11, ‘‘[W]hen regulations merely restate the List of Subjects in 21 CFR Part 16 2016. statute they implement, notice-and- ADDRESSES: For access to the docket to comment procedures are unnecessary.’’ Administrative practice and read background documents or Gray Panthers Advocacy Committee v. procedure. comments received, go to http:// Sullivan, 936 F.2d 1284, 1291 (D.C. Cir. Therefore, under the Federal Food, www.regulations.gov and insert the 1991); see also Komjathy v. Nat. Trans. Drug, and Cosmetic Act and under docket number found in brackets in the Safety Bd., 832 F.2d 1294, 1296 (D.C. authority delegated to the Commissioner heading of this final rule into the Cir. 1987) (when a rule ‘‘does no more of Food and Drugs, 21 CFR part 16 is ‘‘Search’’ box and follow the prompts, than repeat, virtually verbatim, the amended as follows: and/or go to the Division of Dockets statutory grant of authority,’’ notice-and- PART 16—REGULATORY HEARING Management, 5630 Fishers Lane, Rm. comment procedures are not required). BEFORE THE FOOD AND DRUG 1061, Rockville, MD 20852. Further, the change to remove the ADMINISTRATION erroneous cross-reference to § 895.21(d) FOR FURTHER INFORMATION CONTACT: and add the correct cross-reference ■ 1. The authority citation for part 16 Vernon Toelle, Center for Veterinary continues to read as follows: Medicine (HFV–234), Food and Drug 1 Specifically, the SMDA deleted the then-last Administration, 7519 Standish Pl., sentence of section 516(a). See Public Law 101–629, Authority: 15 U.S.C. 1451–1461; 21 U.S.C. Rockville, MD 20855, 240–402–5637, section 18(d)(2) (‘‘Section 516(a) (21 U.S.C. 360f(a)) 141–149, 321–394, 467f, 679, 821, 1034; 28 [email protected]. is amended . . . by striking out the last sentence.’’); U.S.C. 2112; 42 U.S.C. 201–262, 263b, 364. 21 U.S.C. 360f(a) (1989) (stating, in the last ■ 2. Amend § 16.1 as follows: SUPPLEMENTARY INFORMATION: sentence, ‘‘The Secretary shall afford all interested ■ a. In paragraph (b)(1), remove from the persons opportunity for an informal hearing on a Table of Contents list the entry ‘‘Section 516 of the act regulation proposed under this subsection.’’). I. Background 2 relating to a proposed banned device Although the hearing provision was validly II. Legal Authority removed from § 895.21(d)(8) in 1992, the removed regulations (see § 895.21(d) of this III. Effective Date language erroneously reappeared in the Code of chapter).’’ and add in its place ‘‘Section Federal Regulations beginning in 1994. On March IV. Economic Analysis of Impacts 5, 2015 (80 FR 11865), the Office of the Federal 516(b) of the act regarding a proposed V. Analysis of Environmental Impact Register published a correction document fixing regulation to ban a medical device with VI. Paperwork Reduction Act of 1995 this publication error. a special effective date.’’ VII. Federalism
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I. Background We are also updating the language in in accordance with the Plain Writing This regulation is intended to make current § 514.200 from ‘‘written Act of 2010 and Executive Order 13563. appearance’’ to ‘‘objections and request technical amendments to § 514.200 (21 II. Legal Authority CFR 514.200) to harmonize the for a hearing’’ since the latter FDA is issuing these regulations terminology with part 12 (21 CFR part terminology is used throughout part 12. under section 512(e) of the FD&C Act. 12), as well as to update § 514.200 in Finally, we are updating the language in This section gives the Secretary of accordance with plain language § 514.200 on the contents of the Health and Human Services the principles to make it easier for the objections and request for hearing and authority to grant approval, deny public to understand and follow. the contents of the Commissioner’s When the Agency issued procedural notice granting a hearing to match the approval, or withdraw approval of new regulations for formal evidentiary public language of part 12 and to make clear animal drug applications. In addition, hearings, originally published in part 2 what is required. These updates will section 701(a) of the FD&C Act (21 (21 CFR part 2) and later redesignated eliminate confusion that could be U.S.C. 371(a)) gives FDA general rulemaking authority to issue to part 12,1 we intended those caused by use of different terms to refer regulations for the efficient enforcement provisions to apply to all formal to the same procedural requirements of the FD&C Act. evidentiary hearings on new product and allow the reader to obtain necessary Section 6 of Executive Order 13563 applications, including new animal information in one place. We anticipate states that FDA is under a continuing drug applications. As explained in the these technical changes will make obligation to review its existing proposed rule, once the specific § 514.200 easier for the public to regulations periodically to determine provisions in 21 CFR parts 511 and 514 understand and follow. whether any such regulations should be relating to investigational and marketed Since we are revising § 514.200 to modified, streamlined, expanded, or new animal drugs were revised in the harmonize the language and repealed to improve regulatory same way as their counterpart terminology with part 12, we are also effectiveness and reduce public burden. provisions relating to investigational taking this opportunity to update the The Plain Writing Act of 2010 mandates and marketed new drugs, to refer to the language of § 514.200 in accordance that all regulations be written in clear new procedural provisions in part 2, the with the Plain Writing Act of 2010 (Pub. language that is easy for the public to prior procedural provisions relating to L. 111–274) and Executive Order 13563. 2 understand and use. hearings would be revoked. The Plain Writing Act of 2010 requires This rule makes technical Consequently, when part 12 was that all Federal agencies use ‘‘clear amendments to § 514.200 to harmonize finalized, we revised the regulations government communication that the the language and terminology with the specific to new animal drugs. These public can understand and use.’’ governing regulation on administrative revisions included revoking certain Executive Order 13563 mandates that all hearings in part 12 and to update the provisions and revising 21 CFR 514.201 regulations be ‘‘accessible, consistent, language in accordance with the Plain to state that hearings related to new written in plain language, and easy to Writing Act of 2010 and Executive animal drugs under section 512(d) and understand.’’ Therefore, we are Order 13563. Publication of this (e) of the Federal Food, Drug, and eliminating gender-specific pronouns, document constitutes final action on Cosmetic Act (the FD&C Act) (21 U.S.C. passive voice, complicated sentence these changes under the Agency’s 360b(d) and (e)) shall be governed by structure, and archaic language, and original intent with respect to the part 12 of this chapter. However, when hearing provisions for new animal drug we made these revisions to part 514, we updating the language to make it more applications. Therefore, for good cause, neglected to update § 514.200 to match reader-friendly and accessible. We FDA finds under 5 U.S.C. 553(b)(3)(B) the terminology used in part 12. anticipate that these changes will make and (d)(3) that notice and public Therefore, we are now revising § 514.200 clearer and easier to read. comment are unnecessary. § 514.200 to make its language and Additionally, we are updating the title terminology consistent with the of that section from ‘‘Contents of notice III. Effective Date language and terminology of the of opportunity for a hearing’’ to ‘‘Notice of opportunity for hearing; notice of These regulations are effective upon procedural regulations for hearings in publication. part 12. Specifically, we are changing participation and requests for hearing; the references to ‘‘administrative law grant or denial of hearing’’ because the IV. Economic Analysis of Impacts judge’’ in current § 514.200 to the term latter title more accurately describes the We have examined the impacts of the ‘‘presiding officer’’, which is defined in type of information found in § 514.200. final rule under Executive Order 12866, 21 CFR 10.3 3 and further explained in The latter title also harmonizes with an Executive Order 13563, the Regulatory 21 CFR 12.60 as the presiding officer in analogous section for new drug Flexibility Act (5 U.S.C. 601–612), and a hearing will be the Commissioner, a applications in 21 CFR 314.200. the Unfunded Mandates Reform Act of member of the Commissioner’s office to All of these corrections are 1995 (Pub. L. 104–4). Executive Orders whom the responsibility for the matter nonsubstantive, technical amendments 12866 and 13563 direct us to assess all involved has been delegated, or an designed to harmonize the language and costs and benefits of available regulatory administrative law judge qualified terminology of § 514.200 with the alternatives and, when regulation is under 5 U.S.C. 3105. Since the term governing regulation on formal necessary, to select regulatory ‘‘presiding officer’’ is used throughout evidentiary public hearings in part 12 approaches that maximize net benefits part 12, we are updating the language of and to make the language of § 514.200 (including potential economic, § 514.200 to use the same terminology. easier for the public to understand and environmental, public health and safety, follow. We are taking this action as a and other advantages; distributive 1 See 41 FR 51706, November 23, 1976, and 42 part of our Retrospective Review impacts; and equity). We have FR 4680, January 25, 1977. Initiative 4 to clarify and harmonize the 2 developed a comprehensive Economic See 40 FR 40682 at 40716, September 3, 1975. regulations and to update the language 3 ‘‘Presiding officer means the Commissioner or Analysis of Impacts that assesses the the Commissioner’s designee or an administrative impacts of the final rule. We believe that law judge appointed as provided in 5 U.S.C. 3105.’’ 4 See E.O. 13563, section 6. this final rule is not a significant
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regulatory action as defined by List of Subjects in 21 CFR Part 514 (2) If the Commissioner determines Executive Order 12866. Administrative practice and upon review of the data and information The Regulatory Flexibility Act procedure, Animal drugs, Confidential submitted in the objections and request requires us to analyze regulatory options business information, Reporting and for a hearing that a hearing is not that would minimize any significant recordkeeping requirements. justified because no genuine and impact of a rule on small entities. Therefore, under the Federal Food, substantial issue of fact precludes the Because this rule is making only Drug, and Cosmetic Act and under refusal to approve the application or the technical amendments, we certify that authority delegated to the Commissioner withdrawal of approval of the the final rule will not have a significant of Food and Drugs, 21 CFR part 514 is application (for example, the applicant economic impact on a substantial amended as follows: has not identified any adequate and number of small entities. well-controlled clinical investigations to The Unfunded Mandates Reform Act PART 514—NEW ANIMAL DRUG support the claims of effectiveness), the of 1995 (section 202(a)) requires us to APPLICATIONS Commissioner will enter an order prepare a written statement, which denying the hearing and stating the final includes an assessment of anticipated ■ 1. The authority citation for part 514 findings and conclusions. costs and benefits, before issuing ‘‘any continues to read: rule that includes any Federal mandate (3) If the Commissioner determines Authority: 21 U.S.C. 321, 331, 351, 352, upon review of the data and information that may result in the expenditure by 354, 356a, 360b, 371, 379e, 381. State, local, and tribal governments, in submitted in the objections and request the aggregate, or by the private sector, of ■ 2. Revise § 514.200 to read as follows: for a hearing that a hearing is justified, $100,000,000 or more (adjusted the Commissioner will publish a notice § 514.200 Notice of opportunity for setting forth the following: annually for inflation) in any one year.’’ hearing; notice of participation and The current threshold after adjustment requests for hearing; grant or denial of (i) The regulation or order that is the for inflation is $146 million, using the hearing. subject of the hearing; most current (2015) Implicit Price (a) The notice to the applicant of (ii) A statement specifying any part of Deflator for the Gross Domestic Product. opportunity for a hearing on a proposal the regulation or order that has been This final rule would not result in an by the Commissioner to refuse to stayed by operation of law or in the expenditure in any year that meets or approve an application or to withdraw Commissioner’s discretion; exceeds this amount. the approval of an application will be (iii) The parties to the hearing; V. Analysis of Environmental Impact published in the Federal Register together with an explanation of the (iv) The specific issues of fact for We have determined under 21 CFR grounds for the proposed action. The resolution at the hearing; 25.31(i) that this action is of a type that does not individually or cumulatively notice will describe how to request a (v) The presiding officer, or a have a significant effect on the human hearing. An applicant has 30 days after statement that the presiding officer will environment. Therefore, neither an publication of the notice to request a be designated in a later notice; and hearing. environmental assessment nor an (vi) The date, time, and place of the (b) If the applicant fails to request a environmental impact statement is prehearing conference, or a statement hearing within the 30-day timeframe, required. that the date, time, and place will be the Commissioner, without further announced in a later notice. However, VI. Paperwork Reduction Act of 1995 notice, will publish a final order in the case of a denial of approval, the denying or withdrawing approval of the This final rule contains no collection hearing must not occur more than 90 application. of information. Therefore, FDA is not days after expiration of the 30-day time (c) If the applicant desires to request required to seek clearance by the Office period in which to request a hearing, a hearing: of Management and Budget under the unless the presiding officer and the (1) Within 30 days after publication of Paperwork Reduction Act of 1995 (44 applicant otherwise agree; and in the the notice of opportunity for hearing, U.S.C. 3501–3520). case of withdrawal of approval, the the applicant must submit to the hearing will occur as soon as VII. Federalism Division of Dockets Management practicable. We have analyzed this final rule in written objections and a request for a accordance with the principles set forth hearing in accordance with §§ 12.20 and (d) The hearing will be open to the in Executive Order 13132. FDA has 12.22. This request for a hearing must public; however, if the Commissioner determined that the rule does not include each specific objection to the finds that portions of the application contain policies that have substantial proposal on which a hearing is which serve as a basis for the hearing direct effects on the States, on the requested, together with a detailed contain information concerning a relationship between the National description and analysis of the factual method or process entitled to protection Government and the States, or on the information (including all relevant as a trade secret, the part of the hearing distribution of power and clinical and other investigational data) involving such portions will not be responsibilities among the various the applicant will present in support of public, unless the respondent so levels of government. Accordingly, we that objection. A request for a hearing specifies in the request for a hearing. conclude that the rule does not contain may not rest upon mere allegations or Dated: August 3, 2016. policies that have federalism denials or general descriptions of implications as defined in the Executive positions or contentions, but must set Leslie Kux, order and, consequently, a federalism forth specific reliable evidence showing Associate Commissioner for Policy. summary impact statement is not there is a genuine and substantial issue [FR Doc. 2016–18809 Filed 8–10–16; 8:45 am] required. of fact that requires a hearing. BILLING CODE 4164–01–P
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DEPARTMENT OF HOUSING AND Disposition Program are to reduce the 3. Escrow Amount Required for URBAN DEVELOPMENT inventory of single-family properties in Properties Needing Repairs. HUD a manner that minimizes losses to the proposed increasing to $10,000 the 24 CFR Part 291 Mutual Mortgage Insurance Fund maximum amount that buyers would be [Docket No. FR–5776–F–02] (MMIF); promote the expansion of required to place into escrow for repairs homeownership opportunities for in order to qualify for FHA mortgage RIN 2502–AJ32 American families by, among other insurance on properties that do not meet things, selling such properties at a FHA’s Minimum Property Standards. In Disposition of HUD-Acquired Single discount to State and local governments addition, to ensure that HUD can keep Family Properties; Updating HUD’s and HUD-approved nonprofit entities; this amount updated, HUD proposed a Single Family Property Disposition and help stabilize distressed provision that would allow HUD to Regulations communities. increase or decrease the repair escrow AGENCY: Office of the Assistant Following the economic and housing based on changes to the Consumer Price Secretary for Housing-Federal Housing crises that began in 2008, the Federal Index 3 by issuing a Federal Register Commissioner, HUD. Housing Administration (FHA) notice for comment. 4. Listings. HUD proposed amending ACTION: Final rule. determined that it needed to revise, consolidate, and reorganize its property § 291.100(h) to clarify that HUD has the SUMMARY: This final rule revises HUD’s disposition regulations so that they statutory authority to allow for a property disposition regulations. better reflect industry standards, number of listings options. Specifically, Specifically, this rule consolidates and provide greater efficiency in the in addition to asset management and reorganizes these regulations to better administration of HUD’s property listing contracts, HUD proposed reflect industry standards, and allow disposition program, and, ultimately, providing that it may dispose of HUD to conduct its Single Family provide HUD the ability to obtain the properties using any use method that Property Disposition Program more greatest value for its REO properties in the Secretary deems appropriate. In efficiently and effectively so that HUD different market conditions. As a result, addition, HUD proposed revising can obtain the greatest value for its real on October 2, 2015 (80 FR 59690), HUD § 291.100(h)(2)(ii) to require the estate-owned (REO) properties in published a rule that proposed certain purchaser’s broker to submit bids different market conditions. This final changes to part 291. Specifically, HUD through HUD’s designated electronic rule follows publication of the October proposed the following changes: bid system rather than through the 2, 2015, proposed rule and, after 1. Ownership and Disposition exclusive broker. considering public comments submitted Authority. HUD proposed revising the 5. Settlement Cost Assistance in response to the proposed rule, adopts heading of part 291 from ‘‘Disposition of Available to Owner-Occupant Purchasers. HUD proposed removing the proposed rule with minor change. HUD-Acquired Single Family Property’’ HUD’s obligation to pay the broker’s DATES: Effective Date: September 12, to ‘‘Disposition of HUD-Acquired and sales commission and clarifying that 2016. -Owned Single Family Property’’ to settlement cost assistance is only reflect that HUD not only receives REO FOR FURTHER INFORMATION CONTACT: available to owner-occupant purchasers properties, but also holds and maintains Thomas Kumi, Director, Single Family and not investor purchasers. Asset Management and Disposition them throughout the disposition 6. Bidding Process for Competitive Division, Office of Single Family process. For similar reasons, HUD Sales. HUD’s October 2, 2015, rule Housing, Department of Housing and proposed amending § 291.1(a) and proposed updating the bidding process Urban Development, 451 7th Street SW., § 291.90 to, respectively, reference established under the competitive sales Room 9172, Washington, DC 20410– HUD’s authority to acquire and possess procedures in § 291.205. Specifically, 8000, telephone number 202–708–1672 properties and prescribe methods of sale HUD proposed revising § 291.205(k) to (this is not a toll-free number). Persons and disposal of properties. provide for winning bids to be made with hearing or speech impairments 2. Appraisal of HUD REO Properties. available publicly rather than making may access this number through TTY by HUD proposed amending § 291.100(b) to them available for inspection at a time calling the Federal Relay Service at 800– clarify that the list price for HUD REO and place designated by the HUD local 877–8339 (this is a toll-free number). properties may be established utilizing office. In addition, the rule proposed SUPPLEMENTARY INFORMATION: one or more evaluation tools. In specifying that winning bidders may be addition to aligning requirements for notified by their brokers using I. Background REO appraisers with requirements for Section 204(g) of the National appraisers found in 24 CFR part 200, property valuations using mathematical modeling Housing Act (12 U.S.C. 1710g) addresses subpart G, to ensure consistency, the combined with a database. Most AVMs calculate a the management and disposition of rule proposed expanding valuation property’s value at a specific point in time by analyzing values of comparable properties. Some HUD-acquired single-family properties, methods available to include alternative also take into account previous surveyor valuations, which includes HUD-acquired real and methods commonly used in the real historical house price movements, and user inputs personal property assets. HUD’s estate industry, such as Broker Price (e.g., number of bedrooms, property improvements). implementing regulations are codified Opinions (BPO) 1 and Automated Appraisers, investment professionals, and lending 2 institutions use AVM technology in their analysis in 24 CFR part 291. Under this statutory Valuation Models (AVM). of residential property. It is a technology-driven and regulatory authority, HUD is report. The product of an automated valuation charged with carrying out a program of 1 A Broker’s Price Opinion (BPO) is the process technology comes from analysis of public record a hired sales agent utilizes to determine the selling data and computer decision logic combined to sales of HUD-acquired and owned price of a real estate property. BPOs are popularly provide a calculated estimate of a probable selling properties, along with appropriate credit used in situations where lenders and mortgage price of a residential property. terms and standards to be used in companies believe the expense and delay of an 3 The Consumer Price Index (CPI) is prepared by carrying out the program. Property appraisal to determine the value of properties is the Department of Labor’s Bureau of Labor Statistics unnecessary. See https:// and is a measure of the average change over time owned by HUD as a result of acquisition www.brokerpriceopinion.com. in the prices paid by urban consumers for a market includes REO properties. The goals of 2 Automated valuation model (AVM) is the name basket of consumer goods and services. For more HUD’s Single Family Property given to a service that can provide real estate information, see http://stats.bls.gov/cpi/home.htm.
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electronic mail and that an executed HUD Response: The provision in the agent can perform in Pennsylvania is a sales contract will be deemed final rule codifies that not all REO property Competitive Market Analysis (CMA). As when, after being signed by both parties, sales transactions are sold through a result, the proposed rule would bar the executed contract is sent by email brokers (e.g., auctions, third-party sales HUD or HUD Asset Managers in rather than via postal service delivery to at foreclosure, direct sales and, as such, Pennsylvania from paying a fee to a the successful bidder. HUD will not pay a commission to sales agent for a BPO unless that agent 7. Good Neighbor Next Door (GNND). brokers for sale transactions that do not was also a licensed appraiser. The Finally, HUD proposed revising the involve a real estate broker. For commenter also suggests that other GNND program to provide that law transactions that involve the services of States may have similar prohibitions. enforcement officers, similar to teachers a broker, HUD will pay for services HUD Response: The provision in the and firefighters, live in the areas they commensurate with the services rule codifies that HUD may utilize one serve. obtained. For example, for properties or more valuation tools to determine the that involve a listing and selling agent, list price on its REO single-family II. This Final Rule HUD will continue to pay brokers a properties. The specific services This final rule follows publication of commission of up to 6 percent to market requested will be ordered only if the October 2, 2015, proposed rule and and sell the HUD REO property. permitted by State law. For example, if takes into consideration the public Alternately, if a property is being sold BPOs are not permitted to be performed comments received on the proposed through an auction at a pre-foreclosure by a broker, an AVM, CMA, appraisal, rule. The public comment period on the sale, then HUD will not pay a real estate or BPO performed by an appraiser may proposed rule closed on December 1, broker commission. The auction be ordered by HUD’s Asset Manager to 2015, and HUD received six comments. company markets the property and its establish the list price on an REO The commenters were from a retail fee is usually paid as part of the property. home mortgage lender, an organization insurance claim. Comment: HUD should allow of professional real property appraisers, Comment: HUD’s selection of certain servicers to participate in second an organization that provides appraisals, agencies to sell properties and provide chance Claims Without Conveyance of and members of the public. This section appraisals does not provide HUD the Title program. A commenter of this preamble presents a summary of greatest value for the properties. A recommends, based on HUD’s goal to the public comments received on the commenter states that the entities with reduce its REO inventory, that HUD which HUD contracts for the sale of proposed rule, and HUD’s responses to consider allowing servicers to properties and for appraisals of these the comments. After considering these participate in a second chance program properties use favoritism in selecting comments, HUD has decided to adopt for their properties in post-sale that may agencies to sell the properties and the final rule as final with no not have been part of the Claims provide the appraisals. According to the substantive changes. Without Conveyance of Title (CWCOT) commenter, these practices do not program at the time of the foreclosure Comment: Limiting settlement cost benefit HUD in acquiring the greatest sale. The commenter states that its assistance to owner-occupied value for properties. The commenter understanding is that unless loans were purchasers will limit broker recommends that HUD establish a cap part of the original CWCOT program, participation in the REO program. A that limits acquisition opportunities they cannot be considered for second commenter states that the proposal at with these preferred groups, such that it chance auction. The commenter § 291.205(b) to remove HUD’s obligation would allow disposition through other requests that HUD reconsider this and to pay the broker’s sales commission agencies and a broader utility of believes that offering this opportunity to would be a major shift from the real approved appraisers. This, according to servicers will assist in meeting HUD’s estate industry. The commenter the commenter, would provide HUD a goal of reducing inventory and describes the current process of selling marked increase in return on REO minimizing losses. According to the HUD homes as very similar to the properties. commenter, such a change would also traditional real estate market. According HUD Response: HUD disagrees with reduce HUD staffing and contract to the commenter, HUD’s proposal the commenter. HUD selects its Asset expenses, and would benefit would require that the sales broker ask Manager contractors through a communities and tax authorities, which the buyer to pay commission. This competitive bidding process. HUD does would see a positive benefit as homes would create a significant difference not participate and is not privy to an would be reoccupied more quickly, between the sale and disposition of Asset Manger’s selection of its properties better maintained, and taxes HUD homes and traditional sales of real subcontractors, including appraisers. In and HOA and condominium fees paid. estate and would likely deter real estate addition, for Fiscal Years (FY) 2013, The commenter also states that this brokers from participating in the HUD 2014, and 2015, HUD received an would also reduce the servicer’s labor sales process. The commenter also states average of 90 percent of appraisal value costs and out of pocket expenses. that such a change would be unique to for its single-family REO properties. HUD Response: HUD appreciates the the HUD property disposition program This is a clear indication that the commenter’s recommendation; and not in conformance with industry selection criteria used by HUD Asset however, this rule does not affect standards. The commenter suggests an Manager for selecting appraisers CWCOT procedures. Rather, Mortgagee alternative to address commission maximizes the recovery rates on HUD Letter 2014–24, Increasing Use of FHA’s payouts; specifically, that HUD pay single- family REO properties. Claims Without Conveyance of Title commissions based on the net sales Comment: State law may limit real (CWCOT) Procedures,4 establishes the price (Net-to-HUD). According to the estate licensees from preforming a BPO criteria for post-foreclosure, second commenter, this is a common and to value the property. A commenter chance sales efforts. The Mortgagee accepted practice in the real estate states that Pennsylvania prohibits real Letter provides mortgagees with industry and would save hundreds of estate licensees from performing a BPO dollars per transaction and support under their licenses if they are not 4 Mortgagee Letter 2014–24 is available at http:// HUD’s goals of reducing inventory and separately licensed as an appraiser. portal.hud.gov/hudportal/documents/ minimizing losses. According to the commenter, all that an huddoc?id=14–24ml.pdf.
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instructions on accessing and utilizing flexibility in selling properties in ‘‘as-is’’ properties. Generally, the listing agent the Commissioner’s Adjusted Fair condition. The commenter states, prepares a CMA. Currently, HUD orders Market Value, which must be used for however, that the changes proposed by an appraisal as a valuation tool in all foreclosure sales and post- this rule represent first steps toward determining the list price of its REO foreclosure sales efforts. The mortgagee such a model. properties. The appraisal is not always must determine the competitive and HUD Response: HUD appreciates the the sole basis of determining the list non-competitive Commissioner’s commenter’s support of the changes price. This final rule provides HUD with Adjusted Fair Market Value (CAFMV) at proposed by HUD, but disagrees that the flexibility of using one or more other the same time. Essentially, in the event HUD needs a direct conveyance model valuation tools to establish the list price a property does not sell to a third party to increase the efficiency and on its REO single-family properties. at the foreclosure sale, mortgagees may effectiveness of its REO sales program. Since the competitive market ultimately pursue additional sales efforts (and may FHA does not buy, sell, or securitize determines the sales price for HUD REO utilize independent third-party FHA loans and, as such, does not own properties in markets where the AVM, providers to conduct such sales) prior to a loan secured by an FHA mortgage on BPOs, etc., values have historically been making a final decision to convey the the foreclosure sales date. A direct within a relevant range of appraisal property to HUD. A mortgagee’s conveyance model does not ensure that values HUD may determine that it is not decision to pursue additional sales HUD has marketable title on a property cost beneficial for HUD to order efforts, subsequent to the foreclosure insured by an FHA mortgage at the appraisals for establishing the list sale, does not relieve the mortgagee of foreclosure sale or the property does not prices. its responsibility to convey a property to have damages that should be repaired Comment: Independent appraisals are HUD within the required timeframe by the lender prior to conveyance. essential to protecting the taxpayer and stated in § 203.359, unless a sales If a property is not sold to a third the MMIF. The commenter also states contract has been ratified. Where a sales party at the foreclosure sale, the lender that the use of an independent appraisal contract has been ratified, the mortgagee obtains title. Once the lender ascertains will protect taxpayers from distressed will be granted a 30-day extension of the that it has marketable title and the sales below market value and help deadline for conveyance. As such, the property is in conveyance condition, the ensure that local communities do not Department encourages mortgagees to lender files a claim for insurance have properties dumped on the market pursue additional sales efforts benefits and the deed is recorded in at below market prices. According to the concurrently with their preconveyance HUD’s name. HUD’s current conveyance commenter, quality appraisals are processes to ensure that, in the event model provides HUD with reasonable essential if HUD plans to reduce the conveyance is necessary, the mortgagee assurance that there are no inventory of single-family properties in encumbrances to a conveyed property is able to fully comply with FHA’s a manner that minimizes losses to the that will prevent HUD from efficiently conveyance timeframe. In the event a MMIF. The commenter recommends and effectively maintaining and non-competitive CAFMV is used for the that the final rule include a basic marketing an REO property until it is foreclosure sale, as in some judicial requirement for at least one appraisal sold. prepared for REO purposes to protect states, the competitive CAFMV value Comment: BPOs are unregulated and may be utilized for the post-foreclosure taxpayers and local communities. performed by individuals with little HUD Response: HUD disagrees with sales effort, if the requirements for oversight or training and HUD should the commenter. As HUD states in competitive post-foreclosure sales are require one independent appraisal. A response to an earlier comment, most met. commenter, focusing on § 291.100(b), sellers do not obtain an appraisal to Comment: HUD needs to adopt a cautions that BPOs are largely determine the list price of their direct conveyance model. A commenter unregulated and are performed with properties. This final rule provides HUD expresses support for HUD’s proposed little oversight and training. More with the flexibility of using one or more rule, stating that the changes will equip specifically, the commenter states that other valuation tools to establish the list HUD with additional tools necessary to BPO preparers have little valuation- price on its REO single-family increase the efficiency and effectiveness specific education, training, and testing properties. Since, the competitive of its REO sales program and that the requirements, and do not adhere to market ultimately determines the sales changes to HUD REO property generally accepted valuation standards. price for HUD REO properties, in appraisals and maximum escrow The commenter also states that AVMs markets where the AVM, BPOs, etc., amounts for properties needing repairs are essentially statistical algorithms, values have historically been within a will bring FHA practices a step closer to reliant on public record data, which are relevant range of appraisal values, HUD conformance with industry standards. often outdated and/or inaccurate. may determine that it is not cost The commenter states, however, that According to the commenter, AVMs are beneficial for HUD to order appraisals until FHA adopts a direct conveyance also historically weak in nonconforming for establishing the list prices. model, both its REO sales process and markets, as individual property and Properties that are security for broader property preservation policy local market conditions are largely mortgages to be insured by FHA are will continue to lag behind industry overlooked. As a result, the commenter appraised to protect the insurance standards. Specifically, the commenter states that HUD should require at least funds. In neighborhoods where FHA has states that while creating and one independent appraisal. This, insured a significant number of implementing a direct conveyance according to the commenter, would be mortgages, there is an incidental benefit model is a significant undertaking, such generally consistent with requirements of preventing strategic default based on a model would expand the same imposed by Federal bank regulatory inflated values. Additionally, as a by- benefits HUD claims the proposed agencies, which require a current product, HUD’s strategic goal of changes will confer on the market: FHA appraisal or evaluation for REO strengthening the nation’s housing will be able to move properties to REO purposes. market to bolster the economy and more quickly, at a reduced cost, while HUD Response: HUD disagrees. Most protect consumers is advanced. increasing the value of the MMIF. sellers do not obtain an appraisal to Comment: HUD should require two Ultimately, FHA will gain more determine the list price of their value opinions in the case of a
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disposition. The commenter also states services performed by real estate lenders’’ as those depository institutions that in the case of a disposition, HUD appraisers that are commonly utilized in that are regulated by the Federal would benefit from obtaining two value asset management and disposition. That Reserve, the Office of the Comptroller of opinions from real estate appraisal list, according to the commenter, should the Currency, the Federal Deposit professionals; one for the current market include, at a minimum, opinions of Insurance Corporation, or the National value and one for the property’s market value and liquidation or Credit Union Administration, and liquidation value. According to the disposition value by appraisers, drive- which have a depository asset base of commenter, such appraisals are by appraisals, and desktop appraisals, in less than $500 million.5 common throughout the real estate addition to interior inspection This rule final rule codifies changes to sector and can be capably prepared by appraisals. According to the commenter, the administration of HUD’s property residential appraisal professionals. The this would provide HUD with the full disposition and acquisition activities commenter suggests that the Liquidation range of valuation services that are carried out as part of the FHA insurance Value Addendum, published by the available in the conventional market. program for one-to-four family homes. Appraisal Institute, would help HUD HUD Response: The final rule These changes include limiting the understand the range of risk exposure, provides examples of valuation methods provision of settlement cost assistance with the liquidation value helping to that may be used. The list is not all- to owner-occupants, providing HUD illustrate the worst case scenario. The inclusive and enables HUD to use flexibility to run the bidding process for commenter states that such services valuations tools that are currently in REO properties, changes to the direct would provide cost-effective existence or that are developed in the sales process, additional flexibility to alternatives to less credible services future, as appropriate. list properties electronically, changes to such as AVMs and BPOs. The the required escrow amount for III. Findings and Certifications commenter also recommends that, if purchasers obtaining property not HUD is not utilizing them today, it Executive Order 12866 and Executive meeting HUD’s property standards, and considers doing so before turning to less Order 13563 clarifications in the rule governing credible alternatives. Under Executive Order 12866 HUD’s appraisal process. These changes HUD Response: HUD disagrees. As streamline HUD’s administration of its HUD states in response to an earlier (Regulatory Planning and Review), a determination must be made whether a Single Family Property Disposition comment, for FY 2013, FY 2014, and FY Program and reflect industry practice. 2015, HUD’s average sales price as a regulatory action is significant and therefore subject to review by the Office For these reasons, HUD has determined percentage of appraised value was 90 that this final rule does not have a percent. HUD believes that ordering a of Management and Budget (OMB) in accordance with the requirements of the significant economic impact on a Liquidation Value Addendum from an substantial number of small entities. appraiser as an additional cost is not order. Executive Order 13563 cost effective. A liquation value is often (Improving Regulations and Regulatory Paperwork Reduction Act Review) directs executive agencies to obtained from the listing agent through The information collection analyze regulations that are ‘‘outmoded, a CMA as part of the listing broker requirements contained in this final rule ineffective, insufficient, or excessively commission to support price have been approved by OMB under the burdensome, and to modify, streamline, adjustments. Paperwork Reduction Act of 1995 (44 expand, or repeal them in accordance BPOs, CMAs, and AVMs are widely U.S.C. 3501–3520) and assigned OMB with what has been learned. used by various market participants. control number 2502–0306. In The majority of the changes made by HUD believes that when two or more of accordance with the Paperwork this final rule streamline HUD’s these valuation tools are within a Reduction Act, an agency may not property disposition program by relevant range, the values are generally conduct or sponsor, and a person is not bringing its practices into conformance regarded as reliable. required to respond to, a collection of with industry standards and allowing Currently, HUD orders an appraisal as information unless the collection a valuation tool in determining the list HUD to administer its Single Family displays a currently valid OMB control price of its REO properties. The Property Disposition Program more number. appraisal is not always the sole basis of efficiently and more effectively. These determining the list price. The rule changes do not create additional Environmental Impact provides HUD with the flexibility of significant burdens for the public. As a A Finding of No Significant Impact using one or more other valuation tools result, this rule was determined to not (FONSI) with respect to environment to establish the list price on its REO be a significant regulatory action under has been made at the proposed rule single-family properties. Since, the section 3(f) of Executive Order 12866, stage in accordance with HUD competitive market ultimately Regulatory Planning and Review, and regulations at 24 CFR part 50, which determines the sales price for HUD REO therefore was not reviewed by OMB. implement section 102(2)(C) of National properties, in markets where the AVM, Regulatory Flexibility Act Environmental Policy Act (42 U.S.C. BPO, etc., values have historically been 4332(2)(C)). The FONSI remains The Regulatory Flexibility Act (RFA) within a relevant range of appraisal applicable to this final rule and is (5 U.S.C. 601 et seq.) generally requires values, HUD may determine that it is available for public inspection between an agency to conduct a regulatory not cost beneficial for HUD to order the hours of 8 a.m. and 5 p.m., flexibility analysis of any rule subject to appraisals for purposes of establishing weekdays, in the Regulations Division, notice and comment rulemaking the list prices. Office of General Counsel, Department requirements unless the agency certifies Comment: HUD should expand the of Housing and Urban Development, that the rule will not have a significant list of valuation services available. 451 7th Street SW., Room 10276, economic impact on a substantial Finally, the commenter recommends Washington, DC 20410. Due to security that, HUD should insist on expanding number of small entities. This final rule the range of valuation services available does not have a significant economic 5 Of HUD’s 1,459 supervised lenders, 598 are to the agency, the list be expanded to impact on a substantial number of small considered, by HUD, to be ‘‘small supervised include nontraditional valuation entities. HUD defines ‘‘small supervised lenders.’’
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measures at the HUD Headquarters (1) This part governs the acquisition, under section 203(B) of the National building, please schedule an possession, and disposition of one-to- Housing Act (12 U.S.C. 1709(b)). appointment to review the FONSI by four family properties acquired by the (d) Financing. (1) Subject to calling the Regulations Division at 202– Federal Housing Administration (FHA) underwriting requirements, REO 708–3055 (this is not a toll-free through foreclosure of an insured or properties that have not been identified number). Individuals with speech or Secretary-held mortgage or loan under as uninsurable in accordance with hearing impairments may access this the National Housing Act, or acquired paragraph (c) of this section can be number via TTY by calling the Federal by HUD under section 204(g) of the purchased and financed with a mortgage Relay Service at 800–877–8339 (this is National Housing Act (12 U.S.C. insured under section 203(b) or 203(k) a toll-free number). 1710(g)). HUD will issue detailed of the National Housing Act (12 U.S.C. 1709(b), 1709(k)), if supported by an Executive Order 13132, Federalism policies and procedures that must be followed in specific areas. FHA appraisal, in one of the following Executive Order 13132 (entitled * * * * * ways: ‘‘Federalism’’) prohibits an agency from (i) Insured. A property that meets the ■ publishing any rule that has federalism 4. Amend § 291.5 by removing Minimum Property Standards (MPS), as implications if the rule either (i) paragraph (a) and the introductory text defined in HUD Handbook 4905.1 or imposes substantial direct compliance of paragraph (b), adding introductory any successor handbook, as determined costs on State and local governments text to the section, and adding by the Secretary, for existing dwellings and is not required by statute or (ii) alphabetically the definition of will be offered for sale in ‘‘as-is’’ preempts State law, unless the agency ‘‘Secretary’’ as follows: condition with FHA mortgage insurance meets the consultation and funding § 291.5 Definitions. available as provided in part 203 of this chapter. requirements of section 6 of the Terms used in this part are defined as (ii) Insured with repair escrow. (A) A Executive order. This final rule does not follows: have federalism implications and does property that requires no more than not impose substantial direct * * * * * $10,000 for repairs to meet the MPS, as compliance costs on State and local Secretary is defined in 24 CFR 5.100. defined in HUD Handbook 4905.1 or governments or preempt State law * * * * * any successor handbook, as determined within the meaning of the Executive ■ 5. Amend § 291.90 by revising the by the Secretary, will be offered for sale order. introductory text to read as follows: in ‘‘as-is’’ condition with FHA mortgage insurance available, as provided in part Unfunded Mandates Reform Act § 291.90 Sales methods. 203 of this chapter, provided the Title II of the Unfunded Mandates In accordance with section 204(g) of mortgagor establishes a cash escrow to Reform Act of 1995 (2 U.S.C. 1531– the National Housing Act (12 U.S.C. ensure the completion of the required 1538) (UMRA) establishes requirements 1710(g)), HUD will prescribe the terms repairs. for Federal agencies to assess the effects and conditions for all methods of sale. (B) Changes in repair escrow. HUD of their regulatory actions on State, HUD may dispose of assets using any may adjust the escrow balance required local, and tribal governments, and on method that the Secretary deems under this paragraph based on changes the private sector. This final rule does appropriate, including, but not limited to the Consumer Price Index by not impose any Federal mandates on to the following: publishing a Federal Register notice any State, local, or tribal governments, * * * * * that provides for a public comment or on the private sector, within the ■ 6. Amend § 291.100 by revising the period of 30 calendar days for the meaning of the UMRA. section heading and paragraphs (b), (c), purpose of accepting comments on the amount of the change. After comments List of Subjects in 24 CFR Part 291 (d), and (h) to read as follows: have been considered, HUD will publish Community facilities, Conflict of § 291.100 General policy on HUD a final notice announcing the revised interests, Homeless, Lead poisoning, acquisition, ownership, and disposition of escrow amounts. Low and moderate income housing, real estate assets. (iii) Insured with rehabilitation loan Mortgages, Reporting and recordkeeping * * * * * in accordance with section 203(k) of the requirements, Surplus government (b) List price. The list price, or ‘‘asking National Housing Act and pursuant to property. price,’’ assigned to the property is based § 203.50 of this chapter. Accordingly, for the reasons stated in upon one or more evaluation tools (e.g., (2) REO properties that have been the preamble above, HUD amends 24 appraisal, Broker Price Opinion, identified as uninsurable in accordance CFR part 291 as follows: Automated Valuation Model). An with paragraph (c) of this section can be appraisal, when used, must be purchased and financed with a mortgage PART 291—DISPOSITION OF HUD- conducted by an independent real estate insured under section 203(k) of the ACQUIRED AND -OWNED SINGLE appraiser who meets all of the National Housing Act (12 U.S.C. FAMILY PROPERTY requirements of 24 CFR part 200, 1709(k)), subject to underwriting subpart G, and is in good standing on requirements supported by an FHA- ■ 1. The authority citation for part 291 the appraiser roster established under specified appraisal and in accordance continues to read as follows: that section. The appraiser must provide with 24 CFR 203.50. Authority: 12 U.S.C. 1701 et seq., 42 U.S.C. an opinion of the ‘‘as-is’’ market value (3) HUD, in its sole discretion and 1441, 1441a, 1551a and 3535(d) using a valuation method that is subject to appropriations, may take back ■ 2. Revise the heading of part 291 to commonly employed in the industry Purchase Money Mortgages (PMMs) on read as set forth above. and that is consistent with FHA property purchased by governmental ■ 3. Revise § 291.1(a)(1) to read as appraisal requirements. entities or private nonprofit follows: (c) Insurance. When listing properties, organizations who buy property for HUD may elect to include information ultimate resale to owner-occupant § 291.1 Purpose and general requirements. to indicate whether the property is purchasers with incomes at or below (a) * * * eligible for FHA-insured financing 115 percent of the area median income.
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When offered by HUD, a PMM will be (b) Net offer. (1) The net offer is of general local government, or Indian available in an amount determined by calculated by subtracting from the bid tribal government; the Secretary to be appropriate, at price the dollar amounts for the Unit of general local government market rate interest, for a period not to financing and loan closing costs and the means a county or parish, city, town, exceed 5 years. Mortgagors must meet broker’s sales commission, as described township, or other political subdivision FHA mortgage credit standards. in paragraph (b)(2) of this section. of a State. (i) For purposes of this section, the (2) If an owner-occupant purchaser of ■ 10. Amend § 291.520 by removing term ‘‘purchase money mortgage,’’ or the property requests in the bid, HUD ‘‘and’’ from the end of paragraph (a), PMM means a note secured by a may pay all or a portion of the financing removing the period and adding ‘‘;and’’ mortgage or trust deed given by a buyer, and loan closing costs, not to exceed the in its place at the end of paragraph (b), as mortgagor, to the seller, as mortgagee, percentage of the purchase price and adding paragraph (c) to read as as part of the purchase price of the real determined appropriate by the Secretary follows: estate. for the area. In no event will the total (ii) Except as provided in paragraph amount for broker’s sales commission § 291.520 Eligible law enforcement (d)(3) of this section, the purchaser is exceed 6 percent of the purchase price, officers. entirely responsible for obtaining except for cash bonuses offered to * * * * * financing for purchasing a property. brokers by HUD for the sale of hard-to- (c) The full-time employment in * * * * * sell properties. No assistance for paragraph (a) of this section must, in the (h) Any real estate broker who has financing and loan closing costs or for normal course of business, directly agreed to comply with HUD the broker’s sales commission will be serve the locality in which the home is requirements may be eligible to provided to investor purchasers. located. participate in the sales program. (k) * * * Purchasers participating in the (1) The Secretary will make all ■ 11. Revise § 291.525(b) to read as competitive sales program, except winning bids available publicly. follows: government entities and nonprofit (2) Successful bidders will be notified § 291.525 Eligible teachers. organizations, must submit bids through through their real estate brokers by * * * * * a participating broker. In accordance electronic mail, mail, telephone, or with section 204(g) of the National other means. Acceptance of a bid is final (b) The full-time employment in Housing Act (12 U.S.C. 1710(g)), HUD and effective only upon HUD’s paragraph (a) of this section must, in the will prescribe the terms and conditions execution of the sales contract, signed normal course of business, serve for all methods of listing properties. by both the submitting real estate broker students from the locality where the HUD may dispose of properties using and the prospective purchaser, and home is located. any method that the Secretary deems sending a copy of the executed contract ■ 12. Revise § 291.530 to read as appropriate, including, but not limited by electronic mail to the successful follows: to the following: bidder or the bidder’s agent. (1) Open listings. Properties may be (l) Counteroffers. HUD may present § 291.530 Eligible firefighter/emergency sold on an open listing basis with medical technicians. counteroffers during competitive bid participating real estate brokers. periods, as it deems appropriate to A person qualifies as a firefighter/ (2) Asset management and listing minimize losses to its insurance fund. emergency medical technician for the contracts. (i) HUD may invite firms ‘‘Best and Final’’ offers requested by purposes of the GNND Sales Program if experienced in property management to the person is: compete for contracts that provide for HUD are considered counteroffers. an exclusive right to manage and list ■ 8. Revise § 291.500 to read as follows: (a) Employed full-time as a firefighter specified properties in a given area. or emergency medical technician by a § 291.500 Purpose. (ii) In areas where a broker has an fire department or emergency medical exclusive right to list properties, a This subpart describes the policies services responder unit of the Federal purchaser may use a broker of his or her and procedures governing the Good Government, a State, unit of general choice. The purchaser’s broker must Neighbor Next Door (GNND) Sales local government, or an Indian tribal submit the bid through HUD’s Program. The purpose of the GNND government; and designated electronic bid system. Sales Program is to improve the quality (b) The full-time employment in ■ 7. Amend § 291.205 by revising the of life in distressed urban communities. paragraph (a) of this section must, in the introductory text and paragraphs (b), This is to be accomplished by normal course of business, directly (k)(1), (k)(2), and (l) to read as follows: encouraging law enforcement officers, serve the locality where the home is teachers, and firefighters/emergency located. § 291.205 Competitive sales of individual medical technicians to purchase and Dated: August 5, 2016. properties. live in homes that are located in the When HUD conducts competitive same communities where they perform Edward L. Golding, sales of individual properties to their daily responsibilities and duties. Principal Deputy, Assistant Secretary for Housing. individual buyers, it will generally sell ■ 9. Revise § 291.505 to read as follows: the properties on an ‘‘as-is’’ basis, Approved: August 5, 2016. without repairs or warranties, and it § 291.505 Definitions. Nani A. Coloretti, will follow the sales procedures For purposes of this subpart: Deputy Secretary. provided in this section. Locality means the community, [FR Doc. 2016–19132 Filed 8–10–16; 8:45 am] * * * * * neighborhood, or jurisdiction of the unit BILLING CODE 4210–67–P
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DEPARTMENT OF HOMELAND on August 12, 2016 and that display and duration of the safety zone is intended SECURITY required safety zone location are not to protect personnel, vessels, and the included in the published regulations. marine environment from potential Coast Guard This temporary final rule establishes hazards created from a barge-based that safety zone. firework display. No vessel or person 33 CFR Part 165 The Coast Guard is issuing this will be permitted to enter the safety temporary rule without prior notice and [Docket Number USCG–2016–0739] zone without obtaining permission from opportunity to comment pursuant to the COTP or a designated RIN 1625–AA00 authority under section 4(a) of the representative. Administrative Procedure Act (APA) (5 Safety Zone; Pittsburgh Steelers U.S.C. 553(b)). This provision V. Regulatory Analyses Fireworks; Allegheny River Mile 0.0– authorizes an agency to issue a rule We developed this rule after 0.25, Ohio River Mile 0.0–0.1, without prior notice and opportunity to considering numerous statutes and Monongahela River Mile 0.0–0.1, comment when the agency for good Executive orders related to rulemaking. Pittsburgh, PA cause finds that those procedures are Below we summarize our analyses based on a number of these statutes and AGENCY: Coast Guard, DHS. ‘‘impracticable, unnecessary, or contrary to the public interest.’’ Under 5 U.S.C. Executive orders, and we discuss First ACTION: Temporary final rule. 553(b)(B), the Coast Guard finds that Amendment rights of protestors. good cause exists for not publishing a SUMMARY: The Coast Guard is A. Regulatory Planning and Review establishing a temporary safety zone for NPRM with respect to this rule because Executive Orders 12866 and 13563 navigable waters of the Allegheny River the Coast Guard received notice on July direct agencies to assess the costs and mile 0.0–0.25, Ohio River mile 0.0–0.1, 25, 2016 that this additional fireworks benefits of available regulatory Monongahela River mile 0.0–0.1. The display would take place. After alternatives and, if regulation is safety zone is needed to protect receiving and fully reviewing the event necessary, to select regulatory personnel, vessels, and the marine information, circumstances, and exact approaches that maximize net benefits. environment from potential hazards location, the Coast Guard determined Executive Order 13563 emphasizes the created from a barge-based fireworks that a safety zone is necessary to protect importance of quantifying both costs display. Entry of vessels or persons into personnel, vessels, and the marine and benefits, of reducing costs, of this zone is prohibited unless environment from potential hazards harmonizing rules, and of promoting specifically authorized by the Captain of created from a barge-based fireworks flexibility. This rule has not been the Port Pittsburgh. display on the navigable waterway. It would be impracticable to complete the designated a ‘‘significant regulatory DATES: This rule is effective on August full NPRM process for this safety zone action,’’ under Executive Order 12866. 12, 2016 from 9:30 p.m. until 11:30 p.m. because it needs to be established by Accordingly, it has not been reviewed ADDRESSES: To view documents August 12, 2016. The fireworks display by the Office of Management and mentioned in this preamble as being has been advertised and the local Budget. available in the docket, go to http:// community has prepared for the event. This regulatory action determination www.regulations.gov, type USCG–2016– We are issuing this rule, and under 5 is based on the size, location, and 0739 in the ‘‘SEARCH’’ box and click U.S.C. 553(d)(3), the Coast Guard finds duration of the safety zone. This safety ‘‘SEARCH.’’ Click on Open Docket that good cause exists for making it zone impacts a small portion of the Folder on the line associated with this effective less than 30 days after waterway for a limited duration of less rule. publication in the Federal Register. than two hours in the evening. Vessel FOR FURTHER INFORMATION CONTACT: If Delaying this rule would be contrary to traffic will be informed about the safety you have questions on this rule, call or public interest of ensuring the safety of zone through local notices to mariners. email MST1 Jennifer Haggins, Marine spectators and vessels during the event. Moreover, the Coast Guard will issue Safety Unit Pittsburgh, U.S. Coast Immediate action is necessary to broadcast notices to mariners via VHF– Guard, at telephone 412–221–0807, prevent possible loss of life and FM marine channel 16 about the zone email [email protected]. property during the hazards created by and the rule allows vessels to seek permission to transit the zone. SUPPLEMENTARY INFORMATION: a barge-based fireworks display near and over the navigable waterway. B. Impact on Small Entities I. Table of Abbreviations III. Legal Authority and Need for Rule The Regulatory Flexibility Act of CFR Code of Federal Regulations The Coast Guard is issuing this rule 1980, 5 U.S.C. 601–612, as amended, NPRM Notice of proposed rulemaking under authority in 33 U.S.C. 1231. The requires Federal agencies to consider § Section Captain of the Port Pittsburgh (COTP) the potential impact of regulations on U.S.C. United States Code has determined that a safety zone is small entities during rulemaking. The term ‘‘small entities’’ comprises small II. Background Information and needed on August 12, 2016.This rule is businesses, not-for-profit organizations Regulatory History needed to protect personnel, vessels, and the marine environment from that are independently owned and This safety zone and fireworks potential hazards created from a barge- operated and are not dominant in their displays are included in the list of based fireworks display. fields, and governmental jurisdictions annually recurring safety zones with populations of less than 50,000. published in 33 CFR 165.801, Table 1, IV. Discussion of the Rule The Coast Guard certifies under 5 U.S.C. No. 59 as occurring on Sunday, This rule establishes a safety zone on 605(b) that this rule will not have a Monday, or Thursday from September August 12, 2016 from 9:30 p.m. until significant economic impact on a through January each year following 11:30 p.m. The safety zone will cover all substantial number of small entities. Pittsburgh Steelers home games. For this navigable waters on the Allegheny River While some owners or operators of year, the event sponsor is conducting an mile 0.0–0.25, Ohio River mile 0.0–0.1, vessels intending to transit the safety additional barge-based fireworks display Monongahela River mile 0.0–0.1. The zone may be small entities, for the
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reasons stated in section V.A. above, Government and Indian tribes. If you List of Subjects in 33 CFR Part 165 this rule will not have a significant believe this rule has implications for Marine safety, Navigation (water), economic impact on any vessel owner federalism or Indian tribes, please Reporting and recordkeeping or operator. contact the person listed in the FOR requirements, Security measures, Under section 213(a) of the Small FURTHER INFORMATION CONTACT section Waterways. Business Regulatory Enforcement above. Fairness Act of 1996 (Pub. L. 104–121), For the reasons discussed in the we want to assist small entities in E. Unfunded Mandates Reform Act preamble, the Coast Guard amends 33 understanding this rule. If the rule CFR part 165 as follows: The Unfunded Mandates Reform Act would affect your small business, of 1995 (2 U.S.C. 1531–1538) requires organization, or governmental PART 165—REGULATED NAVIGATION Federal agencies to assess the effects of jurisdiction and you have questions AREAS AND LIMITED ACCESS AREAS concerning its provisions or options for their discretionary regulatory actions. In ■ 1. The authority citation for part 165 compliance, please contact the person particular, the Act addresses actions that may result in the expenditure by a continues to read as follows: listed in the FOR FURTHER INFORMATION CONTACT section. State, local, or tribal government, in the Authority: 33 U.S.C. 1231; 50 U.S.C. 191; Small businesses may send comments aggregate, or by the private sector of 33 CFR 1.05–1, 6.04–1, 6.04–6, and 160.5; on the actions of Federal employees $100,000,000 (adjusted for inflation) or Department of Homeland Security Delegation who enforce, or otherwise determine more in any one year. Though this rule No. 0170.1. compliance with, Federal regulations to will not result in such expenditure, we ■ 2. Add § 165.T08–0739 to read as the Small Business and Agriculture do discuss the effects of this rule follows: Regulatory Enforcement Ombudsman elsewhere in this preamble. § 165.T08–0739 Safety Zone; Pittsburgh and the Regional Small Business F. Environment Regulatory Fairness Boards. The Steelers Fireworks; Allegheny River mile 0.0–0.25, Ohio River mile 0.0–0.1, Ombudsman evaluates these actions We have analyzed this rule under Monongahela River mile 0.0–0.1, Pittsburgh, annually and rates each agency’s Department of Homeland Security PA. responsiveness to small business. If you Management Directive 023–01 and (a) Location. The following area is a wish to comment on actions by Commandant Instruction M16475.lD, safety zone: Pittsburgh Steelers employees of the Coast Guard, call 1– which guide the Coast Guard in Fireworks; Allegheny River mile 0.0– 888–REG–FAIR (1–888–734–3247). The complying with the National 0.25, Ohio River mile 0.0–0.1, Coast Guard will not retaliate against Environmental Policy Act of 1969 (42 small entities that question or complain Monongahela River mile 0.0–0.1, U.S.C. 4321–4370f), and have Pittsburgh, PA. about this rule or any policy or action determined that this action is one of a (b) Enforcement. This rule will be of the Coast Guard. category of actions that do not enforced, from 9:30 p.m. until 11:30 individually or cumulatively have a C. Collection of Information p.m. on August 12, 2016. significant effect on the human This rule will not call for a new (c) Regulations. (1) In accordance with environment. This rule involves a safety collection of information under the the general regulations in § 165.23 of zone lasting less then two hours that Paperwork Reduction Act of 1995 (44 this part, entry into this zone is will prohibit entry to the Allegheny U.S.C. 3501–3520). prohibited unless authorized by the River mile 0.0–0.25, Ohio River mile COTP or a designated representative. D. Federalism and Indian Tribal 0.0–0.1, Monongahela River mile 0.0– (2) Persons or vessels requiring entry Governments 0.1during the barge-based firework into or passage through the zone must event. It is categorically excluded from A rule has implications for federalism request permission from the COTP or a further review under paragraph 34 (g) of under Executive Order 13132, designated representative. The COTP Figure 2–1 of the Commandant Federalism, if it has a substantial direct representative may be contacted at 412– Instruction. An environmental analysis effect on the States, on the relationship 221–0807. between the national government and checklist supporting this determination and a Categorical Exclusion (3) All persons and vessels shall the States, or on the distribution of comply with the instructions of the power and responsibilities among the Determination are available in the docket where indicated under COTP or their designated representative. various levels of government. We have Designated COTP representatives analyzed this rule under that Order and ADDRESSES. We seek any comments or information that may lead to the include United States Coast Guard have determined that it is consistent commissioned, warrant, and petty with the fundamental federalism discovery of a significant environmental impact from this rule. officers. principles and preemption requirements (d) Information Broadcasts. The COTP described in Executive Order 13132. G. Protest Activities or a designated representative will Also, this rule does not have tribal inform the public through broadcast implications under Executive Order The Coast Guard respects the First notices to mariners of the enforcement 13175, Consultation and Coordination Amendment rights of protesters. period for the safety zone as well as any with Indian Tribal Governments, Protesters are asked to contact the changes in the planned schedule. because it does not have a substantial person listed in the FOR FURTHER direct effect on one or more Indian INFORMATION CONTACT section to L. McClain, Jr., tribes, on the relationship between the coordinate protest activities so that your Commander, U.S. Coast Guard, Captain of Federal Government and Indian tribes, message can be received without the Port Pittsburgh. or on the distribution of power and jeopardizing the safety or security of [FR Doc. 2016–19128 Filed 8–10–16; 8:45 am] responsibilities between the Federal people, places or vessels. BILLING CODE 9110–04–P
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ENVIRONMENTAL PROTECTION primary submission (e.g., on the Web, Register, we are publishing a separate AGENCY Cloud, or other file sharing system). proposed rule to correct this scrivener’s For additional submission methods, error if any adverse comments are 40 CFR Part 50 the full EPA public comment policy, received on this direct final rule. We [EPA–HQ–OAR–2016–0408; FRL–9950–48– information about CBI or multimedia will not institute a second comment OAR] submissions, and general guidance on period on this action. Any parties making effective comments, please visit interested in commenting must do so at RIN 2060–AS89 http://www2.epa.gov/dockets/ this time. For further information about commenting-epa-dockets. Technical Correction to the National commenting on this rule, see the Ambient Air Quality Standards for FOR FURTHER INFORMATION CONTACT: Mr. ADDRESSES section of this document. If EPA receives adverse comment, we Particulate Matter Brett Gantt, U.S. EPA, Office of Air Quality Planning and Standards, Air will publish a timely withdrawal in the AGENCY: Environmental Protection Quality Assessment Division, Air Federal Register informing the public Agency (EPA). Quality Analysis Group (Mail Code: that this direct final rule will not take ACTION: Direct final rule. C304–04), Research Triangle Park, NC effect. We would address all public 27711; telephone number: (919) 541– comments in any subsequent final rule SUMMARY: The Environmental Protection 5274; fax number: (919) 541–3613; based on the proposed rule. Agency (EPA) is taking direct final email address: [email protected]. B. Does this action apply to me? action to make a technical correction to SUPPLEMENTARY INFORMATION: an equation in an appendix in the This action applies to you if you are National Ambient Air Quality Standards Table of Contents calculating the annual PM2.5 design (NAAQS) for Particle Pollution. I. General Information value for a site which does not have four Equation 2 describes an intermediate A. Why is the EPA using a direct final rule? complete quarters of data for a specific step in the calculation of the design B. Does this action apply to me? year and passes the minimum quarterly value for the annual PM2.5 (particles C. What should I consider as I prepare my value substitution test. comments for the EPA? with an aerodynamic diameter less than C. What should I consider as I prepare or equal to a nominal 2.5 micrometers) II. This Action III. Statutory and Executive Order Reviews my comments for the EPA? NAAQS. This action corrects a A. Executive Order 12866: Regulatory (1) Submitting CBI. Do not submit this scrivener’s error in one of the equations Planning and Review and Executive information to EPA through used to calculate an annual mean PM2.5 Order 13563: Improving Regulation and concentration, to properly account for Regulatory Review www.regulations.gov or email. Clearly cases where a site does not have four B. Paperwork Reduction Act (PRA) mark the part or all of the information complete quarters of data and passes C. Regulatory Flexibility Act (RFA) that you claim to be CBI. For CBI one of two substitution tests. This D. Unfunded Mandates Reform Act information in a disk or CD–ROM that change accurately reflects the intended (UMRA) you mail to the EPA, mark the outside E. Executive Order 13132: Federalism calculation of the annual mean PM2.5 of the disk or CD–ROM as CBI and then F. Executive Order 13175: Consultation identify electronically within the disk or design value and is consistent with the and Coordination With Indian Tribal text elsewhere in the appendix. Governments CD–ROM the specific information that DATES: This rule is effective on October G. Executive Order 13045: Protection of is claimed as CBI. In addition to one 11, 2016 without further notice, unless Children From Environmental Health complete version of the comment that the EPA receives adverse comment by Risks and Safety Risks includes information claimed as CBI, a September 12, 2016. If the EPA receives H. Executive Order 13211: Actions copy of the comment that does not Concerning Regulations That contain the information claimed as CBI adverse comment, we will publish a Significantly Affect Energy Supply, timely withdrawal in the Federal must be submitted for inclusion in the Distribution, or Use public docket. Information so marked Register informing the public that the I. National Technology Transfer and rule will not take effect. Advancement Act will not be disclosed except in accordance with procedures set forth in ADDRESSES: J. Executive Order 12898: Federal Actions Submit your comments, 40 Code of Federal Regulations (CFR) identified by Docket ID No. EPA–HQ– To Address Environmental Justice in Minority Populations and Low-Income part 2. OAR–2016–0408, to the Federal Populations (2) Tips for Preparing Your eRulemaking Portal: http:// K. Congressional Review Act (CRA) Comments. When submitting comments, www.regulations.gov. Follow the online remember to: instructions for submitting comments. I. General Information • Once submitted, comments cannot be Identify the rulemaking by docket edited or withdrawn. The EPA may A. Why is the EPA using a direct final number and other identifying information rule? (subject heading, Federal Register date and publish any comment received to its page number). public docket. Do not submit The EPA is publishing this rule • Follow directions—The agency may ask electronically any information you without a prior proposed rule because you to respond to specific questions or consider to be Confidential Business we view this as a non-controversial organize comments by referencing a CFR part Information (CBI) or other information action and anticipate no adverse or section number. whose disclosure is restricted by statute. comment. This action corrects a • Explain why you agree or disagree; Multimedia submissions (audio, video, scrivener’s error in an intermediate suggest alternatives and substitute language for your requested changes. etc.) must be accompanied by a written equation in the calculation of the annual • comment. The written comment is PM design value to properly account Describe any assumptions and provide 2.5 any technical information and/or data that considered the official comment and for cases where a site does not have four you used. should include discussion of all points complete quarters of data in a specific • If you estimate potential costs or you wish to make. The EPA will year and passes the minimum quarterly burdens, explain how you arrived at your generally not consider comments or value substitution test. In the ‘‘Proposed estimate in sufficient detail to allow for it to comment contents located outside of the Rules’’ section of today’s Federal be reproduced.
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• Provide specific examples to illustrate PM2.5 concentrations when four G. Executive Order 13045: Protection of your concerns, and suggest alternatives. complete quarters of data are available. Children From Environmental Health • Explain your views as clearly as Risks and Safety Risks possible, avoiding the use of profanity or III. Statutory and Executive Order personal threats. Reviews The EPA interprets Executive Order • Make sure to submit your comments by A. Executive Order 12866: Regulatory 13045 as applying only to those the comment period deadline identified. Planning and Review and Executive regulatory actions that concern Order 13563: Improving Regulation and environmental health or safety risks that II. This Action Regulatory Review the EPA has reason to believe may disproportionately affect children, per On December 14, 2012, the EPA This action is not a significant regulatory action and was, therefore, not the definition of ‘‘covered regulatory revised the NAAQS for Particle action’’ in section 2–202 of the Pollution (78 FR 3086). Appendix N to submitted to the Office of Management Executive Order. This action is not part 50 of this document described the and Budget (OMB) for review. subject to Executive Order 13045 data handling conventions and B. Paperwork Reduction Act (PRA) because it does not concern an computations necessary for determining This action does not impose an environmental health risk or safety risk. when the NAAQS for PM2.5 are met. information collection burden under the Section 4.4 described the annual PM2.5 H. Executive Order 13211: Actions design value calculations, with PRA. This action generalizes the Concerning Regulations That equations 1, 2, and 3 used to calculate calculation of the annual PM2.5 NAAQS Significantly Affect Energy Supply, design values and does not impose the quarterly, annual, and 3-year Distribution, or Use average concentrations. Equation 2 additional regulatory requirements on erroneously described the annual mean organizations monitoring air quality. This action is not subject to Executive as the average of the four quarterly C. Regulatory Flexibility Act (RFA) Order 13211 because it is not a values despite the availability of significant regulatory action under substitution tests for cases when I certify that this action will not have Executive Order 12866. quarterly values do not meet the a significant economic impact on a I. National Technology Transfer and completeness requirements in section substantial number of small entities Advancement Act 4.1. under the RFA. This action will not impose any requirements on small This rulemaking does not involve Specifically, the minimum quarterly entities. This action corrects the technical standards. value substitution test described in calculation of annual mean PM section 4.1(c)(i) allows for a valid 2.5 concentrations and does not impose J. Executive Order 12898: Federal annual PM design value to be 2.5 additional regulatory requirements on Actions To Address Environmental calculated when a test design value, sources. Justice in Minority Populations and having deficient quarters substituted Low-Income Populations with quarter-specific low values, is D. Unfunded Mandates Reform Act found to be greater than the level of the (UMRA) The EPA believes that this action is standard. If the minimum quarterly This action does not contain any not subject to Executive Order 12898 (59 value substitution test is passed, the unfunded mandate of $100 million or FR 7629, February 16, 1994) because it annual PM2.5 design value is calculated more as described in UMRA, 2 U.S.C. does not establish an environmental from annual means of the non-deficient 1531–1538, and does not significantly or health or safety standard. This quarterly values, which can range in uniquely affect small governments. This regulatory action is a technical number from one to four for a specific action imposes no enforceable duty on correction to a previously promulgated year. any state, local or tribal governments, or regulatory action and does not have any As currently written, equation 2 is not the private sector. impact on human health or the appropriate for use during a minimum environment. quarterly value substitution test and E. Executive Order 13132: Federalism K. Congressional Review Act does not accurately reflect the intended This action does not have federalism calculation of the annual mean PM2.5 implications. It will not have substantial This action is subject to the CRA, and 1 concentration in these cases. Therefore, direct effects on the states, on the the EPA will submit a rule report to this action generalizes equation 2 to relationship between the national each House of the Congress and to the account for cases that pass the government and the states, or on the Comptroller General of the United minimum quarterly value substitution distribution of power and States. This action is not a ‘‘major rule’’ test, yet do not have four non-deficient responsibilities among the various as defined by 5 U.S.C. 804(2). quarterly values in each of the years in levels of government. the 3-year design value period. This List of Subjects in 40 CFR Part 50 technical correction to equation 2 is F. Executive Order 13175: Consultation currently used in the calculation of the and Coordination With Indian Tribal Air pollution control, Carbon Governments monoxide, Lead, Nitrogen dioxide, PM2.5 annual design value, is consistent with the text of section 4.1 within This action does not have tribal Ozone, Particulate matter, Sulfur oxides. appendix N to part 50, and does not implications, as specified in Executive Dated: August 3, 2016. affect the calculation of annual mean Order 13175. This regulatory action is a Gina McCarthy, technical correction to a previously Administrator. 1 If read literally with the scrivener’s error, it promulgated regulatory action and does would be erroneous to use Equation 2 to calculate not have any impact on human health For the reasons stated in the the annual PM2.5 NAAQS for any year with a preamble, title 40, chapter I of the Code deficient quarter of data because the equation or the environment. Thus, Executive instructs the user to sum all four quarters when at Order 13175 does not apply to this of Federal Regulations is amended as least one of those quarters contains missing data. action. follows:
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PART 50—NATIONAL PRIMARY AND Significant Deterioration (PSD) permit II. Summary of SIP Revision SECONDARY AMBIENT AIR QUALITY program regulations for preconstruction STANDARDS permitting requirements for major The SIP revision submitted by sources. The revision includes a change WVDEP on June 3, 2015 pertains to ■ 1. The authority citation for part 50 in West Virginia’s PSD regulations revisions to its PSD permit program continues to read as follows: related to emissions of fine particulate regulations at 45CSR14–16.7.c that Authority: 42 U.S.C. 7401 et seq. matter (PM2.5). The State’s June 3, 2015 establish a significant monitoring submittal satisfies its obligations concentration (SMC) value of zero ■ 2. In appendix N to part 50, in section pursuant to an earlier rulemaking in micrograms per cubic meter for PM2.5. 4.4, Equation 2 is revised to read as which EPA granted final conditional The submission of this revision allows follows: approval of West Virginia’s PSD EPA to change its conditional approval Appendix N to Part 50—Interpretation implementing regulations. This action of 45CSR14 to a full approval. Because of the National Ambient Air Quality also addresses specific infrastructure this submission fulfills the commitment Standards for PM2.5 program elements specified in Clean Air made by West Virginia in the final Act (CAA) section 110(a)(2) necessary to * * * * * conditional approval of West Virginia’s implement, maintain, and enforce 4.4 Equations for the Annual PM earlier submittals of revisions to 2.5 several national ambient air quality NAAQS 45CSR14 as discussed in the NPR, EPA standards (NAAQS). This action is being is now fully approving West Virginia’s * * * * * taken under the CAA. (b) * * * PSD regulations at 45CSR14 in its DATES: This final rule is effective on entirety as 45CSR14 meets requirements September 12, 2016. in the CAA and its implementing ADDRESSES: EPA has established a regulations and removing the prior docket for this action under Docket ID conditional approval. See 80 FR 36483 Number EPA–R03–OAR–2015–0539. All (final conditional approval of prior SIP documents in the docket are listed in submissions of revisions to 45CSR14). the www.regulations.gov Web site. With its submittal, West Virginia has Although listed in the electronic docket, made all of the changes to its PSD some information is not publicly implementing regulations necessary to available, i.e., confidential business address PM2.5 as prescribed by the CAA, Where: information (CBI) or other information 40 CFR 51.166, and the May 16, 2008 whose disclosure is restricted by statute. new source review implementation rule Xy = the annual mean concentration for year Certain other material, such as y (y = 1, 2, or 3); for PM2.5 at 73 FR 28321. Because West copyrighted material, is not placed on nQy = the number of complete quarters Q in Virginia’s regulations at 45CSR14 fully year y; and the Internet and will be publicly meet the federal requirements for PSD available only in hard copy form. Xqy = the mean for quarter q of year y (result in the CAA, EPA also found that West Publicly available docket materials are of equation 1). Virginia’s PSD program now addresses available through www.regulations.gov * * * * * specific PSD-related portions of the or may be viewed during normal [FR Doc. 2016–19034 Filed 8–10–16; 8:45 am] infrastructure program elements in BILLING CODE 6560–50–P business hours at the Air Protection Division, U.S. Environmental Protection section 110(a)(2) of the CAA for the Agency, Region III, 1650 Arch Street, 1997 ozone and PM2.5 NAAQS, the 2006 ENVIRONMENTAL PROTECTION Philadelphia, Pennsylvania 19103. PM2.5 NAAQS, the 2008 lead and ozone AGENCY Copies of the State submittal are NAAQS, and the 2010 nitrogen dioxide available at the West Virginia (NO2) and sulfur dioxide (SO2) NAAQS. 40 CFR Part 52 Department of Environmental Other specific requirements of and the Protection, Division of Air Quality, 601 rationale for EPA’s approval action of [EPA–R03–OAR–2015–0539; FRL–9950–29– West Virginia’s revised PSD regulations Region 3] 57th Street SE., Charleston, West Virginia 25304. and relevant infrastructure SIP revisions for several NAAQS are explained in the Approval and Promulgation of Air FOR FURTHER INFORMATION CONTACT: Mr. Quality Implementation Plans; West Paul Wentworth, (215) 814–2183, or by NPR and will not be restated here. No Virginia; Prevention of Significant email at [email protected]. public comments were received on the Deterioration and Approval of NPR. SUPPLEMENTARY INFORMATION: Infrastructure State Implementation III. Final Action Plans for Specific National Ambient Air I. Background Quality Standards On January 11, 2016 (81 FR 1133), EPA is approving this SIP revision AGENCY: Environmental Protection EPA published a notice of proposed submitted by WVDEP as a revision to Agency (EPA). rulemaking (NPR) for the State of West the West Virginia SIP for its PSD program and removing a prior ACTION: Final rule. Virginia. In the NPR, EPA proposed approval of a revision to West Virginia’s conditional approval on the PSD SUMMARY: The Environmental Protection PSD permit program regulations for program. In this action, EPA is also Agency (EPA) is approving a State preconstruction permitting approving several of West Virginia’s Implementation Plan (SIP) revision requirements for major sources. The infrastructure SIP revisions as meeting submitted by the West Virginia revision includes revised West Virginia the PSD elements of section 110(a)(2) of Department of Environmental Protection PSD regulations related to emissions of the CAA for the 1997 ozone and PM2.5 (WVDEP) for the State of West Virginia PM2.5. The formal SIP revision was NAAQS, the 2006 PM2.5 NAAQS, the on June 3, 2015. This revision pertains submitted by the State of West Virginia 2008 lead and ozone NAAQS, and the to West Virginia’s Prevention of on June 3, 2015. 2010 NO2 and SO2 NAAQS.
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IV. Incorporation by Reference • is not a significant regulatory action approves portions of several subject to Executive Order 13211 (66 FR infrastructure SIPs as addressing PSD In this rule the EPA is finalizing 28355, May 22, 2001); elements in CAA section 110(a)(2) may regulatory text that includes • is not subject to requirements of not be challenged later in proceedings to incorporation by reference. In Section 12(d) of the National enforce its requirements. (See section accordance with requirements of 1 CFR Technology Transfer and Advancement 307(b)(2).) 51.5, the EPA is finalizing the Act of 1995 (15 U.S.C. 272 note) because incorporation by reference of 45CSR14– application of those requirements would List of Subjects in 40 CFR Part 52 16.7.c, described in the amendments to be inconsistent with the CAA; and Environmental protection, Air 40 CFR part 52 set forth below. The EPA • does not provide EPA with the pollution control, Incorporation by has made, and will continue to make, discretionary authority to address, as reference, Carbon monoxide, these documents generally available appropriate, disproportionate human Intergovernmental relations, Lead, electronically through health or environmental effects, using Nitrogen dioxide, Ozone, Particulate www.regulations.gov and/or may be practicable and legally permissible matter, Reporting and recordkeeping viewed at the appropriate EPA office methods, under Executive Order 12898 requirements, Sulfur oxides, Volatile (see the ADDRESSES section of this (59 FR 7629, February 16, 1994). organic compounds. preamble for more information). In addition, this rule does not have Dated: July 25, 2016. tribal implications as specified by V. Statutory and Executive Order Shawn M. Garvin, Reviews Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is Regional Administrator, Region III. A. General Requirements not approved to apply in Indian country 40 CFR part 52 is amended as follows: Under the CAA, the Administrator is located in the state, and EPA notes that required to approve a SIP submission it will not impose substantial direct PART 52—APPROVAL AND that complies with the provisions of the costs on tribal governments or preempt PROMULGATION OF CAA and applicable federal regulations. tribal law. IMPLEMENTATION PLANS 42 U.S.C. 7410(k); 40 CFR 52.02(a). B. Submission to Congress and the ■ 1. The authority citation for part 52 Thus, in reviewing SIP submissions, Comptroller General continues to read as follows: EPA’s role is to approve state choices, The Congressional Review Act, 5 Authority: 42 U.S.C. 7401 et seq. provided that they meet the criteria of U.S.C. 801 et seq., as added by the Small the CAA. Accordingly, this action Business Regulatory Enforcement Subpart XX—West Virginia merely approves state law as meeting Fairness Act of 1996, generally provides federal requirements and does not that before a rule may take effect, the ■ 2. In § 52.2520: impose additional requirements beyond agency promulgating the rule must ■ a. The table in paragraph (c) is those imposed by state law. For that submit a rule report, which includes a amended by revising the entries for reason, this action: copy of the rule, to each House of the 45CSR Series 14. • Is not a ‘‘significant regulatory Congress and to the Comptroller General ■ b. The table in paragraph (e) is action’’ subject to review by the Office of the United States. EPA will submit a amended by revising the entries for: of Management and Budget under report containing this action and other ■ i. Section 110(a)(2) Infrastructure Executive Orders 12866 (58 FR 51735, required information to the U.S. Senate, Requirements for the 1997 8-Hour October 4, 1993) and 13563 (76 FR 3821, the U.S. House of Representatives, and Ozone NAAQS, January 21, 2011); the Comptroller General of the United ■ ii. Section 110(a)(2) Infrastructure • States prior to publication of the rule in does not impose an information Requirements for the 1997 PM the Federal Register. A major rule 2.5 collection burden under the provisions NAAQS, of the Paperwork Reduction Act (44 cannot take effect until 60 days after it ■ iii. Section 110(a)(2) Infrastructure U.S.C. 3501 et seq.); is published in the Federal Register. Requirements for the 2006 PM2.5 • is certified as not having a This action is not a ‘‘major rule’’ as defined by 5 U.S.C. 804(2). NAAQS, significant economic impact on a ■ iv. Section 110(a)(2) Infrastructure substantial number of small entities C. Petitions for Judicial Review Requirements for the 2008 Lead under the Regulatory Flexibility Act (5 NAAQS, U.S.C. 601 et seq.); Under section 307(b)(1) of the CAA, ■ v. Section 110(a)(2) Infrastructure • petitions for judicial review of this does not contain any unfunded action must be filed in the United States Requirements for the 2008 8-Hour mandate or significantly or uniquely Court of Appeals for the appropriate Ozone NAAQS, affect small governments, as described circuit by October 11, 2016. Filing a ■ vi. Section 110(a)(2) Infrastructure in the Unfunded Mandates Reform Act petition for reconsideration by the Requirements for the 2010 Nitrogen of 1995 (Pub. L. 104–4); Administrator of this final rule does not Dioxide NAAQS, and • does not have federalism affect the finality of this action for the ■ vii. Section 110(a)(2) Infrastructure implications as specified in Executive purposes of judicial review nor does it Requirements for the 2010 1-Hour Order 13132 (64 FR 43255, August 10, extend the time within which a petition Sulfur Dioxide NAAQS. 1999); for judicial review may be filed, and The revised text reads as follows: • is not an economically significant shall not postpone the effectiveness of regulatory action based on health or such rule or action. This action which § 52.2520 Identification of plan. safety risks subject to Executive Order revises West Virginia’s PSD regulations * * * * * 13045 (62 FR 19885, April 23, 1997); related to emissions of PM2.5 and which (c) * * *
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EPA–APPROVED REGULATIONS IN THE WEST VIRGINIA SIP
State citation Additional explanation/ [Chapter 16–20 or 45 Title/Subject State effective EPA Approval date Citation at 40 CFR CSR ] date 52.2565
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[45CSR] Series 14 Permits for Construction and Major Modification of Major Stationary Sources of Air Pollution for the Prevention of Significant Deterioration
Section 45–14–1 ...... General ...... 06/01/2015 08/11/2016, [Insert Federal Register ci- tation]. Section 45–14–2 ...... Definitions ...... 06/01/2015 08/11/2016, [Insert Federal Register ci- tation]. Section 45–14–3 ...... Applicability ...... 06/01/2015 08/11/2016, [Insert Federal Register ci- tation]. Section 45–14–4 ...... Ambient Air Quality Increments and Ceilings ... 06/01/2015 08/11/2016, [Insert Federal Register ci- tation]. Section 45–14–5 ...... Area Classification ...... 06/01/2015 08/11/2016, [Insert Federal Register ci- tation]. Section 45–14–6 ...... Prohibition of Dispersion Enhancement Tech- 06/01/2015 08/11/2016, [Insert niques. Federal Register ci- tation]. Section 45–14–7 ...... Registration, Report and Permit Requirements 06/01/2015 08/11/2016, [Insert for Major Stationary Sources and Major Federal Register ci- Modifications. tation]. Section 45–14–8 ...... Requirements Relating to Control Technology 06/01/2015 08/11/2016, [Insert Federal Register ci- tation]. Section 45–14–9 ...... Requirements Relating to the Source’s Impact 06/01/2015 08/11/2016, [Insert on Air Quality. Federal Register ci- tation]. Section 45–14–10 ...... Modeling Requirements ...... 06/01/2015 08/11/2016, [Insert Federal Register ci- tation]. Section 45–14–11 ...... Air Quality Monitoring Requirements ...... 06/01/2015 08/11/2016, [Insert Federal Register ci- tation]. Section 45–14–12 ...... Additional Impacts Analysis Requirements ...... 06/01/2015 08/11/2016, [Insert Federal Register ci- tation]. Section 45–14–13...... Additional Requirements and Variances for 06/01/2015 08/11/2016, [Insert Source Impacting Federal Class 1 Areas. Federal Register ci- tation]. Section 45–14–14 ...... Procedures for Sources Employing Innovative 06/01/2015 08/11/2016, [Insert Control Technology. Federal Register ci- tation]. Section 45–14–15 ...... Exclusions From Increment Consumption ...... 06/01/2015 08/11/2016, [Insert Federal Register ci- tation]. Section 45–14–16 ...... Specific Exemptions ...... 06/01/2015 08/11/2016, [Insert Federal Register ci- tation]. Section 45–14–17 ...... Public Review Procedures ...... 06/01/2015 08/11/2016, [Insert Federal Register ci- tation]. Section 45–14–18 ...... Public Meetings ...... 06/01/2015 08/11/2016, [Insert Federal Register ci- tation]. Section 45–14–19...... Permit Transfer, Cancellation and Responsi- 06/01/2015 08/11/2016, [Insert bility. Federal Register ci- tation]. Section 45–14–20 ...... Disposition of Permits ...... 06/01/2015 08/11/2016, [Insert Federal Register ci- tation]. Section 45–14–21 ...... Conflict with Other Permitting Rules ...... 06/01/2015 08/11/2016, [Insert Federal Register ci- tation].
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EPA–APPROVED REGULATIONS IN THE WEST VIRGINIA SIP—Continued
State citation Additional explanation/ [Chapter 16–20 or 45 Title/Subject State effective EPA Approval date Citation at 40 CFR CSR ] date 52.2565
Section 45–14–25 ...... Actual PALs ...... 06/01/2015 08/11/2016, [Insert Federal Register ci- tation]. Section 45–14–26 ...... Inconsistency Between Rules ...... 06/01/2015 08/11/2016, [Insert Federal Register ci- tation].
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Applicable Name of non-regulatory geographic State submittal date EPA Approval date Additional explanation SIP revision area
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Section 110(a)(2) Infrastructure Statewide 12/3/07, 5/21/08 ...... 8/4/11, 76 FR 47062 This action addresses the following CAA ele- Requirements for the 1997 8- ments or portions thereof: 110(a)(2)(A), Hour Ozone NAAQS. (B), (C), (D)(ii), (E), (F), (G), (H), (J), (K), (L), and (M). 12/3/07, 12/11/07, 8/ 10/17/12, 77 FR Approval of the following PSD-related ele- 31/11. 63736. ments or portions thereof: 110(a)(2)(D)(i)(II), except taking no action on the definition of ‘‘regulated NSR pollut- ant’’ found at 45CSR14 section 2.66 only as it relates to the requirement to include condensable emissions of particulate mat- ter in that definition. See § 52.2522(i). 6/1/2015 ...... 8/11/2016, ...... Approval of PSD-related element [Insert Federal Reg- 110(a)(2)(D)(i)(II). See § 52.2520. ister citation]. Section 110(a)(2) Infrastructure Statewide 4/3/08, 5/21/08, 7/9/ 8/4/11, 76 FR 47062 This action addresses the following CAA ele- Requirements for the 1997 08, 3/18/10. ments or portions thereof: 110(a)(2)(A), PM2.5 NAAQS. (B), (C), (D)(ii), (E), (F), (G), (H), (J), (K), (L), and (M). 12/11/07, 4/3/08, 8/31/ 10/17/12, 77 FR Approval of the following PSD-related ele- 11. 63736. ments or portions thereof: 110(a)(2)(D) (i)(II), except taking no action on the defi- nition of ‘‘regulated NSR pollutant’’ found at 45CSR14 section 2.66 only as it relates to the requirement to include condensable emissions of particulate matter in that defi- nition. See § 52.2522(i). 6/1/2015 ...... 8/11/2016, ...... Approval of PSD-related element [Insert Federal Reg- 110(a)(2)(D)(i)(II). See § 52.2520. ister citation]. Section 110(a)(2) Infrastructure Statewide 10/1/09, 3/18/10 ...... 8/4/11, 76 FR 47062 This action addresses the following CAA ele- Requirements for the 2006 ments or portions thereof: 110(a)(2)(A), PM2.5 NAAQS. (B), (C), (D)(ii), (E), (F), (G), (H), (J), (K), (L), and (M). 10/1/09, 8/31/11 ...... 10/17/12, 77 FR Approval of the following PSD-related ele- 63736. ments or portions thereof: 110(a)(2)(D) (i)(II), except taking no action on the defi- nition of ‘‘regulated NSR pollutant’’ found at 45CSR14 section 2.66 only as it relates to the requirement to include condensable emissions of particulate matter in that defi- nition. See § 52.2522(i). 6/1/2015 ...... 8/11/2016, ...... Approval of PSD-related element [Insert Federal Reg- 110(a)(2)(D)(i)(II). See § 52.2520. ister citation].
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Applicable Name of non-regulatory geographic State submittal date EPA Approval date Additional explanation SIP revision area
******* Section 110(a)(2) Infrastructure Statewide 10/26/11 ...... 9/10/12, 77 FR 55417 This action addresses the following CAA ele- Requirements for the 2008 ments: 110(a)(2)(A), (B), (C), (D), (E), (F), Lead NAAQS. (G), (H), (J), (K), (L), and (M), or portions thereof. 8/31/11, 10/26/11 ...... 10/17/12, 77 FR Approval of the following elements or por- 63736. tions thereof: 110(a)(2)(C), (D)(i)(II), and (J), except taking no action on the defini- tion of ‘‘regulated NSR pollutant’’ found at 45CSR14 section 2.66 only as it relates to the requirement to include condensable emissions of particulate matter in that defi- nition. See § 52.2522(i). 6/1/2015 ...... 8/11/2016, ...... Approval of PSD-related element [Insert Federal Reg- 110(a)(2)(C), (D)(i)(II), and (J). See ister citation]. § 52.2520. Section 110(a)(2) Infrastructure Statewide 8/31/11, 2/17/12 ...... 10/17/12, 77 FR Approval of the following PSD-related ele- Requirements for the 2008 8- 63736. ments or portions thereof: 110(a)(2)(C), Hour Ozone NAAQS. (D)(i)(II), and (J), except taking no action on the definition of ‘‘regulated NSR pollut- ant’’ found at 45CSR14 section 2.66 only as it relates to the requirement to include condensable emissions of particulate mat- ter in that definition. See § 52.2522(i). 2/17/12 ...... 4/7/2014, ...... This action addresses the following CAA ele- 79 FR 19001 ...... ments, or portions thereof: 110(a)(2)(A), (B), (C), (D), (E), (F), (G), (H), (J), (K), (L), and (M). 7/24/14 ...... 3/9/15, ...... Addresses CAA element 110(a)(2)(E)(ii). 80 FR 12348 ...... 6/1/2015 ...... 8/11/2016, ...... Approval of PSD-related element [Insert Federal Reg- 110(a)(2)(C), (D)(i)(II), and (J). See ister citation]. § 52.2520.
******* Section 110(a)(2) Infrastructure Statewide 12/13/12 ...... 1/22/14, 78 FR 3504 This action addresses the following CAA ele- Requirements for the 2010 Ni- ments: 110(a)(2)(A), (B), (C), (D), (E), (F), trogen Dioxide NAAQS. (G), (H), (J), (K), (L), and (M), or portions thereof. 7/24/14 ...... 3/9/15, 80 FR 12348 Addresses CAA element 110(a)(2)(E)(ii). 6/1/2015 ...... 8/11/2016, ...... Approval of PSD-related element [Insert Federal Reg- 110(a)(2)(C), (D)(i)(II), and (J). See ister citation]. § 52.2520.
******* Section 110(a)(2) Infrastructure Statewide 6/25/13 ...... 10/16/14, 79 FR This action addresses the following CAA ele- Requirements for the 2010 1- 62035. ments: 110(a)(2)(A), (B), (C) (enforcement Hour Sulfur Dioxide NAAQS. and minor new source review), (D)(ii), (E)(i) and (iii), (F), (G), (H), (J) (consulta- tion, public notification, and visibility pro- tection), (K), (L), and (M). 7/24/14 ...... 3/9/15, 80 FR 12348 Addresses CAA element 110(a)(2)(E)(ii). 6/1/2015 ...... 8/11/2016, ...... Approval of PSD-related element [Insert Federal Reg- 110(a)(2)(C), (D)(i)(II), and (J). See ister citation]. § 52.2520.
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[FR Doc. 2016–18518 Filed 8–10–16; 8:45 am] ENVIRONMENTAL PROTECTION ACTION: Final rule. BILLING CODE 6560–50–P AGENCY SUMMARY: This regulation establishes 40 CFR Part 180 tolerances for residues of [EPA–HQ–OPP–2011–0144; FRL–9944–48] aminocyclopyrachlor in or on milk and livestock commodities imported into the Aminocyclopyrachlor; Pesticide United States, which are identified and Tolerances discussed later in this document. E.I. du Pont de Nemours and Company AGENCY: Environmental Protection requested these tolerances under the Agency (EPA).
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Federal Food, Drug, and Cosmetic Act site at http://www.ecfr.gov/cgi-bin/text- 8867–4), EPA issued a document (FFDCA). idx?&c=ecfr&tpl=/ecfrbrowse/Title40/ pursuant to FFDCA section 408(d)(3), 21 _ U.S.C. 346a(d)(3), announcing the filing DATES: This regulation is effective 40tab 02.tpl. To access the OCSPP test August 11, 2016. Objections and guidelines referenced in this document of a pesticide petition (PP 0F7817) by requests for hearings must be received electronically, please go to http:// E.I. du Pont de Nemours and Company, on or before October 11, 2016, and must www.epa.gov/test-guidelines-pesticides- 1007 Market Street, Wilmington, DE 19898. The petition requested that 40 be filed in accordance with the and-toxic-substances. CFR part 180 be amended by instructions provided in 40 CFR part C. How can I file an objection or hearing establishing tolerances for residues of 178 (see also Unit I.C. of the request? the herbicide aminocyclopyrachlor, 6- SUPPLEMENTARY INFORMATION). Under FFDCA section 408(g), 21 amino-5-chloro-2-cyclopropyl-4- ADDRESSES: The docket for this action, U.S.C. 346a, any person may file an pyrimidinecarboxylic acid, and identified by docket identification (ID) objection to any aspect of this regulation aminocyclopyrachlor methyl ester, number EPA–HQ–OPP–2011–0144, is and may also request a hearing on those methyl 6-amino-5-chloro-2-cyclopropyl- available at http://www.regulations.gov objections. You must file your objection 4-pyrimidinecarboxylate, expressed as or at the Office of Pesticide Programs or request a hearing on this regulation aminocyclopyrachlor, in or on grass, Regulatory Public Docket (OPP Docket) in accordance with the instructions forage at 65 parts per million (ppm); in the Environmental Protection Agency provided in 40 CFR part 178. To ensure grass, hay at 125 ppm; fat (of cattle, goat, Docket Center (EPA/DC), West William proper receipt by EPA, you must horse, and sheep) at 0.07 ppm; meat (of Jefferson Clinton Bldg., Rm. 3334, 1301 identify docket ID number EPA–HQ– cattle, goat, horse, and sheep) at 0.02 Constitution Ave. NW., Washington, DC OPP–2011–0144 in the subject line on ppm; meat byproducts, excluding liver 20460–0001. The Public Reading Room the first page of your submission. All (of cattle, goat, horse, and sheep) at 0.4 is open from 8:30 a.m. to 4:30 p.m., objections and requests for a hearing ppm; liver (of cattle, goat, horse, and Monday through Friday, excluding legal must be in writing, and must be sheep) at 0.06 ppm; and milk at 0.035 holidays. The telephone number for the received by the Hearing Clerk on or ppm. That document referenced a Public Reading Room is (202) 566–1744, before October 11, 2016. Addresses for summary of the petition prepared by E.I. and the telephone number for the OPP mail and hand delivery of objections du Pont de Nemours and Company, the Docket is (703) 305–5805. Please review and hearing requests are provided in 40 registrant, which is available in the the visitor instructions and additional CFR 178.25(b). docket, http://www.regulations.gov. information about the docket available In addition to filing an objection or There were no comments received in at http://www.epa.gov/dockets. hearing request with the Hearing Clerk response to the notice of filing. FOR FURTHER INFORMATION CONTACT: as described in 40 CFR part 178, please After issuance of the notice of filing, Susan Lewis, Registration Division submit a copy of the filing (excluding the registrant revised the petition by (7505P), Office of Pesticide Programs, any Confidential Business Information rescinding the proposed grass Environmental Protection Agency, 1200 (CBI)) for inclusion in the public docket. commodities and amending the purpose Pennsylvania Ave. NW., Washington, Information not marked confidential of establishing tolerances from domestic DC 20460–0001; main telephone pursuant to 40 CFR part 2 may be to import use (i.e. import tolerances). number: (703) 305–7090; email address: disclosed publicly by EPA without prior Based upon review of the data [email protected]. notice. Submit the non-CBI copy of your supporting the petition, EPA has lowered the proposed tolerances for SUPPLEMENTARY INFORMATION: objection or hearing request, identified by docket ID number EPA–HQ–OPP– milk, meat (of cattle, goat, horse, and I. General Information 2011–0144, by one of the following sheep), and fat (of cattle, goat, horse, and sheep) and changed the proposed A. Does this action apply to me? methods: • Federal eRulemaking Portal: http:// tolerances from liver and meat You may be potentially affected by www.regulations.gov. Follow the online byproducts, except liver (of cattle, goat, this action if you are an agricultural instructions for submitting comments. horse, and sheep) to meat byproducts (of producer, food manufacturer, or Do not submit electronically any cattle, goat, horse, and sheep). The pesticide manufacturer. The following information you consider to be CBI or reasons for these changes are explained list of North American Industrial other information whose disclosure is in Unit IV.C. Classification System (NAICS) codes is restricted by statute. III. Aggregate Risk Assessment and not intended to be exhaustive, but rather • Mail: OPP Docket, Environmental Determination of Safety provides a guide to help readers Protection Agency Docket Center (EPA/ determine whether this document DC), (28221T), 1200 Pennsylvania Ave. Section 408(b)(2)(A)(i) of FFDCA applies to them. Potentially affected NW., Washington, DC 20460–0001. allows EPA to establish a tolerance (the entities may include: • Hand Delivery: To make special legal limit for a pesticide chemical • Crop production (NAICS code 111). arrangements for hand delivery or residue in or on a food) only if EPA • Animal production (NAICS code delivery of boxed information, please determines that the tolerance is ‘‘safe.’’ 112). follow the instructions at http:// Section 408(b)(2)(A)(ii) of FFDCA • Food manufacturing (NAICS code www.epa.gov/dockets/contacts.html. defines ‘‘safe’’ to mean that ‘‘there is a 311). Additional instructions on reasonable certainty that no harm will • Pesticide manufacturing (NAICS commenting or visiting the docket, result from aggregate exposure to the code 32532). along with more information about pesticide chemical residue, including all anticipated dietary exposures and all B. How can I get electronic access to dockets generally, is available at http:// www.epa.gov/dockets. other exposures for which there is other related information? reliable information.’’ This includes You may access a frequently updated II. Summary of Petitioned-For exposure through drinking water and in electronic version of EPA’s tolerance Tolerance residential settings, but does not include regulations at 40 CFR part 180 through In the Federal Register of Tuesday, occupational exposure. Section the Government Printing Office’s e-CFR March 29, 2011 (76 FR 17376) (FRL– 408(b)(2)(C) of FFDCA requires EPA to
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give special consideration to exposure development or maternal health in rats Cyclopropane Carboxylic Acid of infants and children to the pesticide at all treatment doses including the Cyclopropane carboxylic acid (CPCA), chemical residue in establishing a limit dose. In the rabbit study, also known as IN–V0977, is an tolerance and to ‘‘ensure that there is a administration at the limit dose resulted environmental photolytic degradate of reasonable certainty that no harm will in one treatment-related death and two aminocyclopyrachlor present only in result to infants and children from abortions which were considered surface water. CPCA has a different aggregate exposure to the pesticide secondary effects to maternal weight mode of toxic action than chemical residue . . .’’ losses which occurred over a period of aminocyclopyrachlor and Consistent with FFDCA section 5 to 7 days. No developmental effects aminocyclopyrachlor-methyl. Based on 408(b)(2)(D), and the factors specified in were observed in the offspring. There extensive pre-clinical studies of the FFDCA section 408(b)(2)(D), EPA has were no adverse effects of anxiolytic drug candidate panadiplon, reviewed the available scientific data aminocyclopyrachlor on reproduction which metabolizes to CPCA after oral and other relevant information in and fertility in rats at the limit dose. administration, the target organ is the support of this action. EPA has Toxicity in parental rats and offspring liver, causing impairment of sufficient data to assess the hazards of was limited to decreases in body mitochondrial function by inhibiting the and to make a determination on weights at the limit dose. aggregate exposure for Aminocyclopyrachlor is classified as beta oxidation of fatty acids, resulting in aminocyclopyrachlor including ‘‘Not Likely to be Carcinogenic to microvesicular steatosis (accumulation exposure resulting from the tolerances Humans.’’ This classification is based of small fat droplets in cells) that is established by this action. EPA’s on no treatment-related tumors seen in often accompanied by liver necrosis and assessment of exposures and risks male or female rats or mice at doses that inflammation, decreased hepatic associated with aminocyclopyrachlor were adequate to assess carcinogenicity, glycogen, and decreased blood glucose follows. and no evidence of mutagenicity from a levels. These effects were observed with full battery of in vitro and in vivo acute (1 to 3 days) and repeated (up to A. Toxicological Profile genotoxicity studies. There was no 14 days) exposures. The most sensitive EPA has evaluated the available evidence of neurotoxicity or species is the rabbit. Hepatic toxicity data and considered its validity, immunotoxicity observed in the rodent microvesicular steatosis in the rabbit completeness, and reliability as well as studies up to the limit dose. follows a different dose-response than the relationship of the results of the body-weight decreases observed with studies to human risk. EPA has also Aminocyclopyrachlor-Methyl aminocyclopyrachlor and considered available information The toxicity database for aminocyclopyrachlor-methyl in rats, concerning the variability of the aminocyclopyrachlor-methyl (ester) via with a 100-fold lower adverse-effect sensitivities of major identifiable the oral route of exposure is bridged level. subgroups of consumers, including with aminocyclopyrachlor (parent acid) There are no chronic dietary toxicity infants and children. based on evidence from metabolism studies available to assess the studies, acute toxicity studies, and carcinogenic potential of CPCA. Aminocyclopyrachlor repeat-dose toxicity studies with However, structural-activity Aminocyclopyrachlor (parent acid) common endpoints. The rat metabolism relationship (SAR) analyses on CPCA has low acute toxicity by all routes of studies showed that and panadiplon indicated no structural exposure (oral, dermal, inhalation), does aminocyclopyrachlor-methyl rapidly alerts for genotoxicity or not cause skin irritation or skin metabolizes (within 30 minutes) to carcinogenicity. Also, there were no sensitization, but causes mild eye aminocyclopyrachlor. A full suite of reports of tumorigenic responses to irritation. There are no target organs of acute toxicity studies conducted with CPCA or panadiplon in the open toxicity for aminocyclopyrachlor. In the aminocyclopyrachlor and scientific literature. subchronic oral toxicity studies in rats, aminocyclopyrachlor-methyl resulted in Specific information on the studies mild systemic toxicity effects of the same toxicity category received and the nature of the adverse decreased body weights, body weight classifications. The subchronic oral effects caused by aminocyclopyrachlor, gains, food consumption, and food toxicity study and the modified one- aminocyclopyrachlor-methyl, and efficiency in both sexes were observed generation reproduction toxicity study cyclopropane carboxylic acid, as well as with repeated exposures at very high in rats conducted with the no-observed-adverse-effect-level (limit) doses. There was no appreciable aminocyclopyrachlor-methyl showed (NOAEL) and the lowest-observed- increase in the severity of these effects effects of decreased body weights and adverse-effect-level (LOAEL) from the with time. The most sensitive species is body weight gains at the limit dose toxicity studies can be found at http:// the rat. Subchronic and chronic dietary similar to those observed in the www.regulations.gov in document studies in dogs and mice showed no aminocyclopyrachlor studies. This one- Aminocyclopyrachlor: Human Health adverse effects at all treatment doses generation reproduction study showed Risk Assessment for Section 3, Food Use including the limit dose. The no evidence of reproductive, on Rangeland/Pastures/CRP Acres at subchronic dermal toxicity study in rat developmental, or neurotoxicity at the pages 15–26 in docket ID number EPA– showed no evidence of toxicity at the limit dose. There was no evidence of HQ–OPP–2011–0144. limit dose. Subchronic inhalation mutagenicity in the in vitro bacterial B. Toxicological Points of Departure/ toxicity studies are not available; genotoxicity test conducted with Levels of Concern however, based on the results of the aminocyclopyrachlor-methyl. The acute inhalation studies showing low results of these studies show that Once a pesticide’s toxicological toxicity at twice the limit concentration, aminocyclopyrachlor-methyl causes profile is determined, EPA identifies the likelihood of subchronic toxicity via effects similar to aminocyclopyrachlor toxicological points of departure (POD) inhalation route is expected to be low. at the same dose levels. Therefore, and levels of concern to use in In the prenatal developmental toxicity studies conducted with evaluating the risk posed by human study, there were no adverse effects of aminocyclopyrachlor can be used to exposure to the pesticide. For hazards aminocyclopyrachlor on prenatal support aminocyclopyrachlor-methyl. that have a threshold below which there
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is no appreciable risk, the toxicological exposure level—generally referred to as complete description of the risk POD is used as the basis for derivation a population-adjusted dose (PAD) or a assessment process, see http:// of reference values for risk assessment. reference dose (RfD)—and a safe margin www.epa.gov/pesticides-science-and- PODs are developed based on a careful of exposure (MOE). For non-threshold assessing-pesticide-risks/assessing- analysis of the doses in each risks, the Agency assumes that any human-health-risk-pesticides. toxicological study to determine the amount of exposure will lead to some Summaries of the toxicological dose at which no adverse effects are degree of risk. Thus, the Agency observed (the NOAEL) and the lowest estimates risk in terms of the probability endpoints for aminocyclopyrachlor and dose at which adverse effects of concern of an occurrence of the adverse effect cyclopropane carboxylic acid used for are identified (the LOAEL). Uncertainty/ expected in a lifetime. For more human health risk assessment are safety factors are used in conjunction information on the general principles shown in Tables 1 and 2 of this unit. with the POD to calculate a safe EPA uses in risk characterization and a
TABLE 1—SUMMARY OF TOXICOLOGICAL DOSES AND ENDPOINTS FOR AMINOCYCLOPYRACHLOR FOR USE IN HUMAN HEALTH RISK ASSESSMENT
Point of departure and RfD and PAD for Exposure/scenario uncertainty/safety risk assessment Study and toxicological effects factors
Acute dietary (All populations) .. No hazard attributable to a single-exposure was identified.
Chronic dietary (All populations) NOAEL= 279 mg/kg/ Chronic RfD = 2.79 Combined Chronic Toxicity/Carcinogenicity Rat Study. day. mg/kg/day. LOAEL = 892 (males)/957 (females) mg/kg/day based on mild UFA = 10x cPAD = 2.79 mg/kg/ decreases in body weight/body weight gain. UFH = 10x ...... day FQPA SF = 1x
TABLE 2—SUMMARY OF TOXICOLOGICAL DOSES AND ENDPOINTS FOR CYCLOPROPANE CARBOXYLIC ACID FOR USE IN HUMAN HEALTH RISK ASSESSMENT
Point of departure and RfD and PAD for risk Exposure/scenario uncertainty/safety assessment Study and toxicological effects factors
Acute dietary (All populations) .. LOAEL= 2.55 mg/kg/ Acute RfD = 0.026 Panadiplon Subchronic Oral Rabbit Study day CPCA. mg/kg/day. LOAEL = 10 mg/kg/day panadiplon (calculated to 2.55 mg/kg/ UFA = 10x aPAD = 0.0026 mg/ day CPCA) based on hepatic steatosis. UFH = 10x kg/day FQPA SF (UFDB, UFL) = 10x Chronic dietary (All populations) LOAEL= 2.55 mg/kg/ Chronic RfD = Panadiplon Subchronic Oral Rabbit Study day CPCA. 0.0087 mg/kg/day. LOAEL = 10 mg/kg/day panadiplon (calculated to 2.55 mg/kg/ UFA = 10x cPAD = 0.00087 mg/ day CPCA) based on hepatic steatosis. UFH = 10x kg/day FQPA SF (UFDB, UFL, UFS) = 30x FQPA SF = Food Quality Protection Act Safety Factor. LOAEL = lowest-observed-adverse-effect-level. mg/kg/day = milligram/kilogram/day. NOAEL = no-observed-adverse-effect-level. PAD = population adjusted dose (a = acute, c = chronic). RfD = reference dose. UF = uncertainty factor. UFA = extrapolation from animal to human (interspecies). UFDB = to account for the absence of data or other data deficiency. UFH = po- tential variation in sensitivity among members of the human population (intraspecies). UFL = use of a LOAEL to extrapolate a NOAEL. UFS = use of a short-term study for long-term risk assessment.
C. Exposure Assessment i. Acute exposure. Quantitative acute (USDA) 2003–2008 National Health and dietary exposure and risk assessments Nutrition Examination Survey, What We 1. Dietary exposure from food and are performed for a food-use pesticide, Eat in America (NHANES/WWEIA). feed uses. In evaluating dietary if a toxicological study has indicated the iii. Cancer. Based on the data exposure to aminocyclopyrachlor, EPA possibility of an effect of concern summarized in Unit III.A., EPA has considered exposure under the occurring as a result of a 1-day or single concluded that aminocyclopyrachlor petitioned-for tolerances only, as there exposure. No such effects were and CPCA do not pose cancer risks to are no registered food/feed uses. CPCA identified in the toxicological studies humans. Therefore, dietary exposure is an environmental photodegradate of for aminocyclopyrachlor; therefore, a assessment for the purpose of assessing aminocyclopyrachlor present only in quantitative acute dietary exposure cancer risk is unnecessary. surface water; therefore, any dietary assessment was not conducted. iv. Anticipated residue and percent exposure would be from drinking water ii. Chronic exposure. In conducting crop treated (PCT) information. EPA did only and is not expected through food the chronic dietary exposure assessment not use anticipated residue and/or PCT or feed. EPA assessed dietary exposures for aminocyclopyrachlor, EPA used food information in the dietary assessment from aminocyclopyrachlor in food as consumption information from the for aminocyclopyrachlor. Tolerance- follows: United States Department of Agriculture level residues and 100 PCT were
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assumed for all petitioned-for food that would result in residential was observed at the limit dose, but the commodities. exposure. In the risk assessment, EPA abortions were considered secondary 2. Dietary exposure from drinking had assessed residential exposure based effects due to severe maternal body water. The Agency used screening level on previously-registered uses on lawn weight loss. There was also no evidence water exposure models in the dietary and turf, including golf courses; of increased susceptibility of offspring exposure analysis and risk assessment however, those residential use patterns in the rat reproduction and fertility for aminocyclopyrachlor and CPCA in are no longer registered, and therefore studies, with only body weight drinking water. These simulation non-dietary residential exposure does decreases observed in both maternal rats models take into account data on the not occur. and offspring at the limit dose. physical, chemical, and fate/transport 4. Cumulative effects from substances For CPCA, there were no information characteristics. Further information with a common mechanism of toxicity. available investigating developmental or regarding EPA drinking water models Section 408(b)(2)(D)(v) of FFDCA offspring effects. However, there is used in pesticide exposure assessment requires that, when considering whether indirect evidence in the open literature can be found at http://www.epa.gov/ to establish, modify, or revoke a that the young may be more sensitive to pesticide-science-and-assessing- tolerance, the Agency consider the metabolic effects of CPCA, and this pesticide-risks/about-water-exposure- ‘‘available information’’ concerning the evidence does not allow this potential models-used-pesticide. cumulative effects of a particular sensitivity to be ruled out. This The importation of milk and livestock pesticide’s residues and ‘‘other evidence is provided by inherited commodities containing potential substances that have a common conditions, specifically inborn errors of residues of aminocyclopyrachlor will mechanism of toxicity.’’ metabolism that results in compromised not increase pesticide exposure in U.S. EPA has not found metabolism of fatty acids that is drinking water. Therefore, the drinking aminocyclopyrachlor to share a qualitatively similar to that of CPCA’s water estimates are based on pesticide common mechanism of toxicity with effect of inhibition of beta oxidation of exposure from the existing non-food/ any other substances, and fatty acids. These inborn metabolism non-feed uses of aminocyclopyrachlor. aminocyclopyrachlor does not appear to errors result in energy deficiencies Based on the First Index Reservoir produce a toxic metabolite produced by during periods of fasting, and it is Screening Tool (FIRST) and Pesticide other substances. For the purposes of known that developing/young children Root Zone Model Ground Water this tolerance action, therefore, EPA has are more sensitive to these effects than (PRZM–GW) models, the estimated assumed that aminocyclopyrachlor does pregnant women or adults. The drinking water concentrations (EDWCs) not have a common mechanism of magnitude of this effect would be much of aminocyclopyrachlor for chronic toxicity with other substances. For more severe in the inherited case than exposures for non-cancer assessments information regarding EPA’s efforts to for CPCA. This is because fatty acid are estimated to be 18.3 parts per billion determine which chemicals have a oxidation is almost completely (ppb) for surface water, and 78.0 ppb for common mechanism of toxicity and to compromised in the inherited case and ground water. The EDWCs of CPCA evaluate the cumulative effects of such other cellular processes are also from surface water are estimated to be chemicals, see EPA’s Web site at http:// impacted, whereas only beta oxidation 1.7 ppb for acute exposure, and 1.2 ppb www.epa.gov/pesticide-science-and- of fatty acids would be impacted for for chronic exposures for non-cancer assessing-pesticide-risks/cumulative- CPCA, and the magnitude of this impact assessments. Ground water EDWCs for assessment-risk-pesticides. is anticipated to be negligible for the CPCA were not calculated since CPCA D. Safety Factor for Infants and estimated (low-level) dietary exposures. is a photodegradate of 3. Conclusion. For Children aminocyclopyrachlor and is not aminocyclopyrachlor, EPA has anticipated to be present in ground 1. In general. Section 408(b)(2)(C) of determined that reliable data show the water due to the absence of sunlight. FFDCA provides that EPA shall apply safety of infants and children would be Modeled estimates of drinking water an additional tenfold (10X) margin of adequately protected if the FQPA SF concentrations were directly entered safety for infants and children in the were reduced to 1X. into the dietary exposure model. For case of threshold effects to account for For the degradate cyclopropane chronic dietary risk assessment to prenatal and postnatal toxicity and the carboxylic acid, the FQPA SF is retained aminocyclopyrachlor, the water completeness of the database on toxicity at 10X for acute dietary exposures, to concentration value of 78.0 ppb was and exposure unless EPA determines account for the extrapolation of data used to assess the contribution to based on reliable data that a different from a LOAEL to a NOAEL for hepatic drinking water. For acute dietary risk margin of safety will be safe for infants steatosis/necrosis in rabbits, and to assessment to CPCA, the water and children. This additional margin of account for any potential uncertainties concentration value of 1.7 ppb was used safety is commonly referred to as the regarding developmental toxicity effects to assess the contribution to drinking FQPA Safety Factor (SF). In applying based on the available data. This SF is water. For chronic dietary risk this provision, EPA either retains the considered protective because hepatic assessment to CPCA, the water default value of 10X, or uses a different steatosis/necrosis and any concentration value of 1.2 ppb was used additional safety factor when reliable developmental toxicity effects would be to assess the contribution to drinking data available to EPA support the choice caused by the same cellular mechanism. water. of a different factor. Therefore, protecting for these liver 3. From non-dietary exposure. The 2. Prenatal and postnatal sensitivity. effects would protect any potential term ‘‘residential exposure’’ is used in As discussed in Unit III.A., there was no developmental toxicity resulting from this document to refer to non- evidence of prenatal toxicity resulting very low dietary exposures to CPCA. occupational, non-dietary exposure from exposure to aminocyclopyrachlor. For chronic dietary exposures, the (e.g., for lawn and garden pest control, There was no evidence of increased FQPA SF is increased from 10X to 30X indoor pest control, termiticides, and susceptibility following in utero to account for the use of a short-term flea and tick control on pets). exposure in the rat and rabbit (acute) study to assess long-term Aminocyclopyrachlor is not currently developmental toxicity studies. An (chronic) exposure. The additional 3X registered for any specific use patterns increase in abortions in maternal rabbits SF is considered protective since the
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duration of the acute study was 14 days or rabbits in the prenatal developmental 2. Chronic risk. Using the exposure with the dose administered as a bolus studies or in young rats in the 2- assumptions described in this unit for (via gavage). Because the exposure in generation reproduction study. In the chronic exposure, EPA has concluded this study was repeated and a bolus rabbit prenatal developmental study, an that chronic exposure will utilize <1% dose was used that would overestimate increase in abortions was observed at of the cPAD for aminocyclopyrachlor dietary exposure, the severity of the the limit dose, which were considered (from food and water) and 7.4% of the liver effects are not expected to vary secondary effects to severe decreases in cPAD for CPCA (from water only) for all substantially with time. maternal body weight. infants less than 1 year old, the Those decisions are based on the As discussed in Unit III.D.2., there is population group receiving the greatest following findings: no information available that directly exposure. Based on the explanation in i. The toxicity database for investigates the developmental effects of Unit III.C.3. regarding residential use aminocyclopyrachlor is adequate for CPCA. However, based on the known patterns, chronic residential exposure to assessing the sensitivity of infants and information, the magnitude of the residues of aminocyclopyrachlor and children under FQPA and for selecting potential impact of CPCA exposure on CPCA is not expected. endpoints for risk assessment. the inhibition of beta oxidation of fatty 3. Short- and Intermediate-term risks. The database for CPCA is also acids is anticipated to be negligible for Short- and intermediate-term aggregate adequate, as there is a substantial the estimated dietary exposure, and less exposures take into account short- and amount of toxicological information than the non-CPCA-related effects intermediate-term residential exposures available in the open literature that resulting from inborn metabolic errors plus chronic exposure to food and water identifies the target organ of toxicity, the which compromises the metabolism of (considered to be a background mechanism of toxicity, and the most fatty acids and other cellular processes. exposure level). sensitive species. The FQPA SFs iv. There are no residual uncertainties Short- and intermediate-term adverse account for any residual uncertainties in effects were identified; however, the toxicity database for CPCA. identified in the exposure databases. The dietary food exposure assessments aminocyclopyrachlor is no longer ii. There is no indication that registered for any use patterns that aminocyclopyrachlor is a neurotoxic were performed based on 100 PCT and tolerance-level residues. EPA made would result in residential exposure. chemical and there is no need for a Short- and intermediate-term risks are developmental neurotoxicity study or conservative (protective) assumptions in assessed based on short-term/ additional UFs to account for the ground and surface water modeling intermediate-term residential exposure neurotoxicity. Based on the mechanism used to assess exposure to plus chronic dietary exposure. Because of toxicity for CPCA that has been aminocyclopyrachlor and CPCA in there is no residential exposure and identified in the open scientific drinking water. These assessments will chronic dietary exposure has already literature, the nervous system is not not underestimate the exposure and been assessed under the appropriately expected to be more sensitive than the risks posed by aminocyclopyrachlor and protective cPAD (which is at least as liver. Although there are no studies CPCA. protective as the POD used to assess available that directly investigate the E. Aggregate Risks and Determination of short-/intermediate-term risk), no effects of CPCA on the nervous system, Safety there is indirect evidence that the further assessment of short- and endpoint on which the Agency is EPA determines whether acute and intermediate-term risks are necessary, regulating CPCA (hepatic steatosis/ chronic dietary pesticide exposures are and EPA relies on the chronic dietary necrosis) is protective of the nervous safe by comparing aggregate exposure risk assessments for evaluating short- system. First, the molecular mechanism estimates to the acute PAD (aPAD) and and intermediate-term risks for underlying hepatic steatosis has been chronic PAD (cPAD). For linear cancer aminocyclopyrachlor and CPCA. identified as inhibition of the metabolic risks, EPA calculates the lifetime 4. Aggregate cancer risk for U.S. pathway of beta oxidation of fatty acids probability of acquiring cancer given the population. Based on the lack of in the mitochondria. This is a major, estimated aggregate exposure. Short-, evidence of carcinogenicity in two energy producing pathway in liver but intermediate-, and chronic-term risks adequate rodent carcinogenicity studies, not in the brain. Since the ketone bodies are evaluated by comparing the aminocyclopyrachlor is not expected to generated by this process in the liver are estimated aggregate food, water, and pose a cancer risk to humans. As metabolized by the brain for energy, any residential exposure to the appropriate discussed in Unit III.A., CPCA is also brain effects from inhibition of this PODs to ensure that an adequate MOE not expected to pose a cancer risk to pathway would be secondary to liver exists. humans. 5. Determination of safety. Based on effects. Second, CPCA is a metabolite of 1. Acute risk. An acute aggregate risk these risk assessments, EPA concludes panadiplon, a drug that was developed assessment takes into account acute that there is a reasonable certainty that to target the nervous system as an exposure estimates from dietary no harm will result to the general anxiolytic. Panadiplon failed in consumption of food and drinking population, or to infants and children preclinical development not as a result water. For aminocyclopyrachlor, no from aggregate exposure to of neurotoxicity, but as a result of liver adverse effect resulting from a single aminocyclopyrachlor and CPCA toxicity that was caused by CPCA. This oral exposure was identified and no residues. further supports that adverse effects on acute dietary endpoint was selected. the liver is more sensitive than the Therefore, aminocyclopyrachlor is not IV. Other Considerations brain. Since the endpoint chosen for expected to pose an acute risk. A. Analytical Enforcement Methodology risk assessment is protective for liver For CPCA, using the exposure effects, it is therefore also protective for assumptions discussed in this unit for Adequate enforcement methodology any primary or secondary neurotoxicity acute exposure, the acute dietary ([DuPont–27162, Revision No. 1; high- that may result from CPCA exposure. exposure from drinking water only will performance liquid chromatography iii. There is no evidence that occupy 11% of the aPAD for all infants with tandem mass spectrometry aminocyclopyrachlor results in less than 1 year old, the population detection (HPLC/MS/MS)) is available increased susceptibility in in utero rats group receiving the greatest exposure. to enforce the tolerance expression.
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The method may be requested from: at 0.05 ppm; sheep, meat at 0.01 ppm; does not impose any enforceable duty or Chief, Analytical Chemistry Branch, and sheep, meat byproducts at 0.30 contain any unfunded mandate as Environmental Science Center, 701 ppm. described under Title II of the Unfunded Mapes Rd., Ft. Meade, MD 20755–5350; Mandates Reform Act (UMRA) (2 U.S.C. VI. Statutory and Executive Order telephone number: (410) 305–2905; 1501 et seq.). This action does not Reviews email address: involve any technical standards that [email protected]. This action establishes tolerances would require Agency consideration of under FFDCA section 408(d) in B. International Residue Limits voluntary consensus standards pursuant response to a petition submitted to the to section 12(d) of the National In making its tolerance decisions, EPA Agency. The Office of Management and Technology Transfer and Advancement seeks to harmonize U.S. tolerances with Budget (OMB) has exempted these types Act (NTTAA) (15 U.S.C. 272 note). international standards whenever of actions from review under Executive possible, consistent with U.S. food Order 12866, entitled ‘‘Regulatory VII. Congressional Review Act safety standards and agricultural Planning and Review’’ (58 FR 51735, Pursuant to the Congressional Review practices. EPA considers the October 4, 1993). Because this action Act (5 U.S.C. 801 et seq.), EPA will international maximum residue limits has been exempted from review under submit a report containing this rule and (MRLs) established by the Codex Executive Order 12866, this action is other required information to the U.S. Alimentarius Commission (Codex), as not subject to Executive Order 13211, Senate, the U.S. House of required by FFDCA section 408(b)(4). entitled ‘‘Actions Concerning Representatives, and the Comptroller Codex is a joint United Nations Food Regulations That Significantly Affect General of the United States prior to and Agriculture Organization/World Energy Supply, Distribution, or Use’’ (66 publication of the rule in the Federal Health Organization food standards FR 28355, May 22, 2001) or Executive Register. This action is not a ‘‘major program, and it is recognized as an Order 13045, entitled ‘‘Protection of rule’’ as defined by 5 U.S.C. 804(2). international food safety standards- Children from Environmental Health setting organization in trade agreements Risks and Safety Risks’’ (62 FR 19885, List of Subjects in 40 CFR Part 180 to which the United States is a party. April 23, 1997). This action does not Environmental protection, EPA may establish a tolerance that is contain any information collections Administrative practice and procedure, different from a Codex MRL; however, subject to OMB approval under the Agricultural commodities, Pesticides FFDCA section 408(b)(4) requires that Paperwork Reduction Act (PRA) (44 and pests, Reporting and recordkeeping EPA explain the reasons for departing U.S.C. 3501 et seq.), nor does it require requirements. from the Codex level. any special considerations under Dated: July 28, 2016. The Codex has not established any Executive Order 12898, entitled Jack E. Housenger, MRLs for aminocyclopyrachlor. ‘‘Federal Actions to Address Environmental Justice in Minority Director, Office of Pesticide Programs. C. Revisions to Petitioned-For Populations and Low-Income Therefore, 40 CFR chapter I is Tolerances Populations’’ (59 FR 7629, February 16, amended as follows: Based on the available residue 1994). Since tolerances and exemptions PART 180—[AMENDED] chemistry data and EPA policy on that are established on the basis of a livestock tolerances, the proposed petition under FFDCA section 408(d), ■ 1. The authority citation for part 180 tolerances for liver (0.06 ppm) and meat such as the tolerance in this final rule, continues to read as follows: byproducts except liver (0.40 ppm) of do not require the issuance of a cattle, goat, horse, and sheep are proposed rule, the requirements of the Authority: 21 U.S.C. 321(q), 346a and 371. replaced by establishing tolerances for Regulatory Flexibility Act (RFA) (5 ■ 2. Add § 180.689 to subpart C to read meat byproducts of cattle, goat, horse, U.S.C. 601 et seq.), do not apply. This as follows: and sheep at 0.30 ppm. Also, based on action directly regulates growers, food § 180.689 Aminocyclopyrachlor; the residue data, EPA is lowering the processors, food handlers, and food tolerances for residues. proposed tolerances for fat of cattle, retailers, not States or tribes, nor does (a) General. Tolerances are horse, goat, and sheep from 0.07 ppm to this action alter the relationships or established for residues of the herbicide 0.05 ppm. Lastly, EPA is also lowering distribution of power and aminocyclopyrachlor, including its the proposed tolerances for milk from responsibilities established by Congress metabolites and degradates, in or on the 0.035 ppm to 0.01 ppm, and meat of in the preemption provisions of FFDCA commodities in the table below. cattle, goat, horse, and sheep from 0.02 section 408(n)(4). As such, the Agency Compliance with the tolerance levels ppm to 0.01 ppm to harmonize with has determined that this action will not specified below is to be determined by established Canadian MRLs. have a substantial direct effect on States or tribal governments, on the measuring only the sum of V. Conclusion relationship between the national aminocyclopyrachlor, 6-amino-5-chloro- Therefore, tolerances are established government and the States or tribal 2-cyclopropyl-4-pyrimidinecarboxylic for residues of the herbicide governments, or on the distribution of acid, and aminocyclopyrachlor methyl aminocyclopyrachlor, 6-amino-5-chloro- power and responsibilities among the ester, methyl 6-amino-5-chloro-2- 2-cyclopropyl-4-pyrimidinecarboxylic various levels of government or between cyclopropyl-4-pyrimidinecarboxylate, acid, including its metabolites and the Federal Government and Indian calculated as the stoichiometric degradates, in or on cattle, fat at 0.05 tribes. Thus, the Agency has determined equivalent of aminocyclopyrachlor. ppm; cattle, meat at 0.01 ppm; cattle, that Executive Order 13132, entitled meat byproducts at 0.30 ppm; goat, fat ‘‘Federalism’’ (64 FR 43255, August 10, Commodity Parts per million at 0.05 ppm; goat, meat at 0.01 ppm; 1999) and Executive Order 13175, Cattle, fat 1 ...... 0.05 goat, meat byproducts at 0.30 ppm; entitled ‘‘Consultation and Coordination Cattle, meat 1 ...... 0.01 horse, fat at 0.05 ppm; horse, meat at with Indian Tribal Governments’’ (65 FR Cattle, meat byproducts 1 0.30 0.01 ppm; horse, meat byproducts at 67249, November 9, 2000) do not apply Goat, fat 1 ...... 0.05 0.30 ppm; milk at 0.01 ppm; sheep, fat to this action. In addition, this action Goat, meat 1 ...... 0.01
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Commodity Parts per million Docket is (703) 305–5805. Please review as described in 40 CFR part 178, please the visitor instructions and additional submit a copy of the filing (excluding Goat, meat byproducts 1 ... 0.30 information about the docket available any Confidential Business Information Horse, fat 1 ...... 0.05 at http://www.epa.gov/dockets. (CBI)) for inclusion in the public docket. Horse, meat 1 ...... 0.01 FOR FURTHER INFORMATION CONTACT: Information not marked confidential Horse, meat byproducts 1 0.30 1 Susan Lewis, Registration Division pursuant to 40 CFR part 2 may be Milk ...... 0.01 disclosed publicly by EPA without prior Sheep, fat 1 ...... 0.05 (7505P), Office of Pesticide Programs, Sheep, meat 1 ...... 0.01 Environmental Protection Agency, 1200 notice. Submit the non-CBI copy of your Sheep, meat byproducts 1 0.30 Pennsylvania Ave. NW., Washington, objection or hearing request, identified DC 20460–0001; main telephone by docket ID number EPA–HQ–OPP– 1 There are no U.S. registrations as of Au- 2012–0919, by one of the following gust 11, 2016. number: (703) 305–7090; email address: [email protected]. methods: • Federal eRulemaking Portal: http:// (b) Section 18 emergency exemptions. SUPPLEMENTARY INFORMATION: [Reserved] www.regulations.gov. Follow the online (c) Tolerances with regional I. General Information instructions for submitting comments. Do not submit electronically any registrations. [Reserved] A. Does this action apply to me? (d) Indirect or inadvertent residues. information you consider to be CBI or [Reserved] You may be potentially affected by other information whose disclosure is this action if you are an agricultural [FR Doc. 2016–19117 Filed 8–10–16; 8:45 am] restricted by statute. producer, food manufacturer, or • Mail: OPP Docket, Environmental BILLING CODE 6560–50–P pesticide manufacturer. The following Protection Agency Docket Center (EPA/ list of North American Industrial DC), (28221T), 1200 Pennsylvania Ave. Classification System (NAICS) codes is NW., Washington, DC 20460–0001. ENVIRONMENTAL PROTECTION • AGENCY not intended to be exhaustive, but rather Hand Delivery: To make special provides a guide to help readers arrangements for hand delivery or 40 CFR Part 180 determine whether this document delivery of boxed information, please applies to them. Potentially affected follow the instructions at http:// [EPA–HQ–OPP–2012–0919; FRL–9946–30] entities may include: www.epa.gov/dockets/contacts.html. • Crop production (NAICS code 111). Additional instructions on Halauxifen-methyl; Pesticide • Animal production (NAICS code commenting or visiting the docket, Tolerances 112). along with more information about • dockets generally, is available at http:// AGENCY: Environmental Protection Food manufacturing (NAICS code Agency (EPA). 311). www.epa.gov/dockets. • Pesticide manufacturing (NAICS ACTION: Final rule. II. Summary of Petitioned-For code 32532). Tolerance SUMMARY: This regulation establishes B. How can I get electronic access to In the Federal Register of February tolerances for residues of halauxifen- other related information? 15, 2013 (78 FR 11126) (FRL–9378–4), methyl and its metabolite, XDE–729 You may access a frequently updated EPA issued a document pursuant to acid, in or on multiple commodities FFDCA section 408(d)(3), 21 U.S.C. which are identified and discussed later electronic version of EPA’s tolerance regulations at 40 CFR part 180 through 346a(d)(3), announcing the filing of a in this document. Dow AgroSciences pesticide petition (PP 2F8086) by Dow LLC requested these tolerances under the Government Printing Office’s e-CFR site at http://www.ecfr.gov/cgi-bin/text- AgroSciences, 9330 Zionsville Road, the Federal Food, Drug, and Cosmetic Indianapolis, IN 46268. The petition Act (FFDCA). idx?&c=ecfr&tpl=/ecfrbrowse/Title40/ 40tab_02.tpl. requested that 40 CFR part 180 be DATES: This regulation is effective amended by establishing tolerances for August 11, 2016. Objections and C. How can I file an objection or hearing residues of the herbicide, halauxifen- requests for hearings must be received request? methyl (methyl 4-amino-3-chloro-6-(4- on or before October 11, 2016, and must Under FFDCA section 408(g), 21 chloro-2-fluoro-3- be filed in accordance with the U.S.C. 346a, any person may file an methoxyphenyl)pyridine-2-carboxylate) instructions provided in 40 CFR part objection to any aspect of this regulation and its major metabolite, XDE–729 acid, 178 (see also Unit I.C. of the and may also request a hearing on those expressed as halauxifen-methyl (parent) SUPPLEMENTARY INFORMATION). objections. You must file your objection equivalents, in or on barley, grain at ADDRESSES: The docket for this action, or request a hearing on this regulation 0.01 parts per million (ppm); barley, hay identified by docket identification (ID) in accordance with the instructions at 0.01 ppm; barley, straw at 0.01 ppm; number EPA–HQ–OPP–2012–0919, is provided in 40 CFR part 178. To ensure cattle, fat at 0.01 ppm; cattle, meat at available at http://www.regulations.gov proper receipt by EPA, you must 0.01 ppm; cattle, meat byproducts at or at the Office of Pesticide Programs identify docket ID number EPA–HQ– 0.01 ppm; goat, fat at 0.01 ppm; goat, Regulatory Public Docket (OPP Docket) OPP–2012–0919 in the subject line on meat at 0.01 ppm; goat, meat byproducts in the Environmental Protection Agency the first page of your submission. All at 0.01 ppm; horse, fat at 0.01 ppm; Docket Center (EPA/DC), West William objections and requests for a hearing horse, meat at 0.01 ppm; horse, meat Jefferson Clinton Bldg., Rm. 3334, 1301 must be in writing, and must be byproducts at 0.01 ppm; milk at 0.01 Constitution Ave. NW., Washington, DC received by the Hearing Clerk on or ppm; sheep, fat at 0.01 ppm; sheep, 20460–0001. The Public Reading Room before October 11, 2016. Addresses for meat at 0.01 ppm; sheep, meat is open from 8:30 a.m. to 4:30 p.m., mail and hand delivery of objections byproducts at 0.01 ppm; wheat, forage at Monday through Friday, excluding legal and hearing requests are provided in 40 0.5 ppm; wheat, grain at 0.01 ppm; holidays. The telephone number for the CFR 178.25(b). wheat, hay at 0.04 ppm; and wheat, Public Reading Room is (202) 566–1744, In addition to filing an objection or straw at 0.015 ppm. That document and the telephone number for the OPP hearing request with the Hearing Clerk referenced a summary of the petition
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prepared by Dow AgroSciences LLC, the subgroups of consumers, including of entry effects. In addition, halauxifen- registrant, which is available in the infants and children. methyl has a low vapor pressure and docket, http://www.regulations.gov. The toxicology database for adequate particle sizes for test There were no comments received in halauxifen-methyl is considered atmospheres could not be generated. response to the notice of filing. adequate at this time. Following oral Guideline rat or rabbit dermal toxicity, Based upon review of the data exposure and absorption, the liver is rat two-generation reproductive toxicity, supporting the petition, EPA has exposed pre-systemically to halauxifen- dog chronic toxicity, rat chronic determined that livestock commodity methyl, where it is hydrolyzed to its toxicity/carcinogenicity, mouse tolerances are not required for the major metabolite, XDE–729 acid, before carcinogenicity, rat acute and proposed uses. In addition, the entering the systemic circulation. subchronic neurotoxicity studies on proposed ‘‘wheat, hay’’ tolerance level Therefore, systemic exposure to organs halauxifen-methyl were also waived. of 0.04 ppm will be set at a reduced and tissues other than the liver is to The waivers were granted because tolerance level of 0.03 ppm. The reason XDE–729 acid, whereas the liver is also adequate data were available for XDE– for these changes are explained in Unit exposed to the parent prior to its 729 acid, to which systemic exposure IV.C. metabolism. The guideline studies were would occur. The available data, when conducted on XDE–729 acid and III. Aggregate Risk Assessment and combined with the bridging and MOE identified the kidney as the main target Determination of Safety data on halauxifen-methyl, allowed organ. Bridging studies on halauxifen- identification of a protective POD for Section 408(b)(2)(A)(i) of FFDCA methyl identified the liver as the target AhR-mediated liver toxicity. Therefore, allows EPA to establish a tolerance (the organ, but the data could not bridge to an additional database uncertainty legal limit for a pesticide chemical the acid metabolite because liver factor (UF ) is not required for either residue in or on a food) only if EPA DB toxicity from exposure to halauxifen- compound. Both are mild eye irritants determines that the tolerance is ‘‘safe.’’ methyl occurred at lower doses than the (Category III) but not dermal irritants or Section 408(b)(2)(A)(ii) of FFDCA kidney toxicity resulting from exposure sensitizers. XDE–729 acid is classified defines ‘‘safe’’ to mean that ‘‘there is a to XDE–729 acid. In lieu of conducting as ‘‘not likely to be carcinogenic to reasonable certainty that no harm will long-term oral studies on halauxifen- humans.’’ Halauxifen-methyl is result from aggregate exposure to the methyl, mechanistic studies were classified as ‘‘not likely to be pesticide chemical residue, including performed to characterize the mode of carcinogenic to humans at doses that do all anticipated dietary exposures and all action (MOA) for liver toxicity. These not induce Cyp1a1 expression,’’ based other exposures for which there is studies identified activation of the liver on the premise that AhR activation and reliable information.’’ This includes aryl hydrocarbon receptor (AhR) as the subsequent promotion of hepatocellular exposure through drinking water and in MOA, and the molecular initiating event tumors (via a prolonged increase in residential settings, but does not include (MIE), for liver toxicity, for which hepatocellular proliferation), a well- occupational exposure. Section increased liver Cyp1a1 gene expression known non-genotoxic mechanism of 408(b)(2)(C) of FFDCA requires EPA to serves as a biomarker. In the absence of liver carcinogenesis that has been give special consideration to exposure this MIE, liver toxicity from parent previously described for other of infants and children to the pesticide halauxifen-methyl, including induction chemicals, depend upon this molecular chemical residue in establishing a of hepatocellular proliferation, will not initiating event (MIE). Moreover, based tolerance and to ‘‘ensure that there is a be observed. A point of departure (POD) on its rapid metabolism to XDE–729 reasonable certainty that no harm will of 3 mg/kg/day for increased Cyp1a1 acid, halauxifen-methyl is not expected result to infants and children from expression (observed at 10 mg/kg/day, to persist in the body; therefore, aggregate exposure to the pesticide the study NOAEL) was identified in the progression of liver toxicity (including chemical residue. . . .’’ rat 90-day dietary study on halauxifen- carcinogenic potential) from sustained Consistent with FFDCA section methyl and was selected for chronic AhR activation is not expected. Neither 408(b)(2)(D), and the factors specified in dietary risk assessment, since it protects compound showed evidence of FFDCA section 408(b)(2)(D), EPA has for the initial step in liver toxicity, genotoxicity. reviewed the available scientific data regardless of exposure duration. and other relevant information in Therefore, the bridging and mechanistic There is no evidence of increased support of this action. EPA has studies were considered along with the prenatal susceptibility to either sufficient data to assess the hazards of guideline studies in selection of the compound in developmental toxicity and to make a determination on dose and endpoint for halauxifen- studies in two species. No aggregate exposure for halauxifen- methyl. Based on the abundance of developmental toxicity was observed in methyl and its acid metabolite, guideline and mechanistic data the presence of maternal toxicity for rats including exposure resulting from the available, a MOA approach was used for exposed to halauxifen-methyl or rabbits tolerances established by this action. the identification and characterization exposed to XDE–729 acid. In rats EPA’s assessment of exposures and risks of hazard. Due to the distinct toxicities exposed to XDE–729 acid, mild fetal associated with halauxifen-methyl and of the two compounds and the unique effects (decreased body weight and its major metabolite, XDE–729 acid, MOA for liver toxicity of halauxifen- delayed ossification of the thoracic follows. methyl, risk from the two compounds centra) were observed in the presence of was assessed separately. more significant maternal toxicity A. Toxicological Profile There is no evidence of neurotoxicity (moribund sacrifice due to excessively EPA has evaluated the available or immunotoxicity for either compound. decreased body weight and food toxicity data and considered its validity, Inhalation studies (including the acute consumption, along with increased completeness, and reliability as well as LD50 study) were waived because MOEs relative kidney weight). In rabbits the relationship of the results of the for inhalation exposure, calculated exposed to halauxifen-methyl, the fetal studies to human risk. EPA has also using a highly conservative endpoint effects (decreased body weight, considered available information from oral data, were high (≥2,500), and increases in delayed ossification of the concerning the variability of the the available oral and dermal studies pubis) were observed in the presence of sensitivities of major identifiable did not indicate the potential for portal maternal liver histopathology and
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increased liver weight, at a dose greater information on the general principles toxicity may not occur in the absence of than the maternal LOAEL, and were EPA uses in risk characterization and a the MIE, regardless of exposure therefore not considered indicative of complete description of the risk duration. They are also protective of greater sensitivity. In a rat two- assessment process, see http:// chronic effects from XDE–729 acid, generation reproductive toxicity study www.epa.gov/pesticides/factsheets/ which are observed at higher doses. A on XDE–729 acid, there was no riskassess.htm. UF of 100 is based on the combined evidence of increased postnatal A summary of the toxicological interspecies (10x) and intraspecies (10x) susceptibility. Parental toxicity in the endpoints for halauxifen-methyl used in UFs. An additional 10x UF for lack of rat two-generation reproductive toxicity the Agency’s human health risk chronic data was not applied for the study was observed at 443 mg/kg/day assessment is shown in Table 1(a) of following reasons: (1) Progression of (NOAEL 103 mg/kg/day), but no this unit. No hazard from a single toxicity was not observed in the 28- and offspring or reproductive toxicity was exposure was identified in the available 90-day dietary studies in the rat: the reported. A reproductive toxicity study database; therefore, no risk is expected NOAELs and LOAELs for both studies was not conducted on halauxifen- from acute dietary exposure to were the same, and the severity of the methyl. Residual concerns for postnatal halauxifen-methyl. For chronic dietary findings was minimal at both exposure susceptibility to halauxifen-methyl in exposure, the rat 90-day oral study was durations; (2) evaluation of Cyp1a1 the absence of this study are low, due selected. Although long-term oral expression in the rat 28- and 90-day to selection of a highly conservative toxicity studies are not available for studies indicated that at the selected endpoint and assumptions for dietary halauxifen-methyl, a dose and an POD of 3 mg/kg/day, which is below the exposure, as well as the low level of endpoint protective of long-term NOAELs for these studies, there is no exposure expected from proposed use toxicity could be identified using the expectation of significant AhR patterns. subchronic data together with the MOA activation that could lead to liver Specific information on the studies data. The rat 90-day study NOAEL of toxicity. Observable liver toxicity in received and the nature of the adverse 10.3 mg/kg/day was based on increased these studies was only associated with effects caused by halauxifen-methyl and liver weight, hypertrophy and significantly greater levels of Cyp1a1; its metabolite, XDE–729 acid, as well as vacuolization consistent with fatty (3) halauxifen-methyl is rapidly the no-observed-adverse-effect-level change at the LOAEL of 53.4 mg/kg/day. metabolized to the acid, and neither (NOAEL) and the lowest-observed- Liver effects at the LOAEL were of low bioaccumulate; and (4) based on adverse-effect-level (LOAEL) from the severity but were considered treatment- comparative in vitro studies, humans toxicity studies can be found at http:// are not anticipated to be more sensitive www.regulations.gov in document related. A marked increase (1,500-fold above controls) in Cyp1a1 expression to liver effects of halauxifen-methyl Halauxifen-methyl—New Active than rats. Ingredient Human Health Risk was also observed at the LOAEL. As Assessment for Proposed Uses on Cereal previously noted, mechanistic studies Carcinogenicity studies on Grains (Barley, Wheat, and Triticale) at on halauxifen-methyl identified halauxifen-methyl were not conducted. page 42 in docket ID number EPA–HQ– activation of liver AhR as the MOA for Systemic exposure from halauxifen- OPP–2012–0919. liver toxicity, for which increased methyl is primarily to XDE–729 acid, expression of Cyp1a1 in the liver is a which showed no evidence of B. Toxicological Points of Departure/ biomarker for AhR activation, the MIE. carcinogenicity. However, pre-systemic Levels of Concern In the absence of AhR activation, liver exposure of the liver to halauxifen- Once a pesticide’s toxicological toxicity will not occur. Although there methyl was shown to activate the AhR profile is determined, EPA identifies were no liver effects observed at the receptor, an effect that induces an toxicological points of departure (POD) study NOAEL, a 52-fold increase in increase in hepatocellular proliferation and levels of concern to use in Cyp1a1 expression was observed. This and, subsequently, may promote an evaluating the risk posed by human increase is well below the increase that increased incidence of liver tumors with exposure to the pesticide. For hazards was associated which mild liver long-term exposure. The molecular that have a threshold below which there toxicity. Long-term effects on the liver marker for AhR activation, the MIE for is no appreciable risk, the toxicological from this lower level increase are not liver toxicity, is increased expression of POD is used as the basis for derivation known in the absence of chronic data, hepatic Cyp1a1, which was observed at of reference values for risk assessment. but the lowest dose in the study, 3 mg/ a dose below the LOAEL for observable PODs are developed based on a careful kg/day, showed essentially no Cyp1a1 adverse effects of any type. The chronic analysis of the doses in each activation. Cyp1a1 expression at 3 mg/ dietary endpoint for halauxifen-methyl toxicological study to determine the kg/day was comparable to controls in is based on the point of departure (POD) dose at which no adverse effects are both the 28- and 90-day studies (1.2- from the rat subchronic study for observed (the NOAEL) and the lowest and 3.6-fold higher than controls, Cyp1a1 induction, as described above. dose at which adverse effects of concern respectively), indicating that there is not The selected POD is considered very are identified (the LOAEL). Uncertainty/ expected to be significant activation of conservative because it is below the safety factors are used in conjunction the AhR receptor at this dose level over study NOAEL (the LOAEL was based on with the POD to calculate a safe time. Therefore, in order to be protective mild liver effects). Since Cyp1a1 exposure level—generally referred to as of potential adverse effects on the liver induction is one of the early key events a population-adjusted dose (PAD) or a following long-term exposure, the point in the MOA leading to hepatotoxicity reference dose (RfD)—and a safe margin of departure (POD) of 3 mg/kg/day was and promotion of hepatocellular of exposure (MOE). For non-threshold selected, based on increased expression proliferation, a dose that is protective of risks, the Agency assumes that any of liver Cyp1a1 (52-fold) at 10 mg/kg/ this event will be protective of the amount of exposure will lead to some day. The selected dose and endpoint are potential risk for liver cancer with degree of risk. Thus, the Agency considered conservative, since the dose chronic exposure, based on the rapid estimates risk in terms of the probability is below the study NOAEL, but onset of AhR activation following of an occurrence of the adverse effect protective of residual uncertainty due to initiation of exposure, and the lack of expected in a lifetime. For more the lack of chronic data because liver evidence of temporal progression of
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liver toxicity in the available studies that humans are unlikely to be more likely to be carcinogenic to humans’’ at (28- and 90-day). The MOA is sensitive than the rat. Based on a doses that do not induce liver Cyp1a1 considered relevant to human health weight-of-the-evidence consideration, expression. risk assessment, but in vitro data suggest halauxifen-methyl is classified as ‘‘not
TABLE 1(a)—SUMMARY OF TOXICOLOGICAL DOSES AND ENDPOINTS FOR HALAUXIFEN-METHYL FOR USE IN HUMAN HEALTH RISK ASSESSMENT
Point of departure and RfD, PAD, LOC for Exposure/Scenario uncertainty/safety risk assessment Study and toxicological effects factors
Acute dietary (General popu- No hazard from a single exposure was identified in the available database; therefore, no risk is expected from lation including infants and this exposure scenario. children and females age 13– 49).
Chronic dietary (All populations) POD = 3.0 mg/kg/ Chronic RfD = 0.03 90-day oral toxicity in the rat (halauxifen-methyl). day. mg/kg/day. NOAEL = 10 mg/kg/day. UFA = 10x cPAD = 0.03 mg/kg/ At the NOAEL, increased Cyp1a1 expression was observed UFH = 10x day (endpoint selected for risk assessment). The lowest dose of FQPA SF = 1x 3.0 mg/kg/day was selected to be protective of potential long-term effects from increased AhR expression in the liver.1 LOAEL = 52 mg/kg/day based on mild liver enlargement and pathology.
Cancer (Oral, dermal, inhala- Classification: Not likely to be carcinogenic to humans at dose levels that do not induce Cyp1a1 expression. tion). The cRfD is considered protective of potential cancer effects because it protects for the MIE for hepatocellular proliferation (AhR activation) that, over time, may result in promotion of liver tumors. Point of Departure (POD) = A data point or an estimated point that is derived from observed dose-response data and used to mark the begin- ning of extrapolation to determine risk associated with lower environmentally relevant human exposures. NOAEL = no observed adverse effect level. LOAEL = lowest observed adverse effect level. UF = uncertainty factor. UFA = extrapolation from animal to human (interspecies). UFH = potential variation in sensitivity among members of the human population (intraspecies). FQPA SF = FQPA Safety Factor. PAD = population ad- justed dose (a = acute, c = chronic). RfD = reference dose. MIE = molecular initiating event. 1. The POD selected for risk assessment was based on a non-adverse finding, increased liver Cyp1a1 expression in a rat 90-day dietary study, which was observed below the study NOAEL of 10 mg/kg/day for liver toxicity. This effect is a biomarker for activation of AhR, which causes liver toxicity and hepatocellular proliferation. The POD was selected to be protective of potential liver effects resulting from chronic dietary exposure to halauxifen-methyl. Other tissues and organs will not be exposed to halauxifen-methyl due to rapid conversion to XDE–729 acid. The POD is protective of effects from exposure to XDE–729 acid.
A summary of the toxicological chosen to assess chronic dietary risk to = 526 mg/kg/day) and rabbit (LOAEL endpoints for XDE–729 acid used for XDE–729 acid. A NOAEL of 20.3 was 1094 mg/kg/day). human risk assessment is shown in chosen based on hyperplasia of the There was no evidence of Table 1(b) of this unit. No hazard from renal pelvic epithelium in females carcinogenicity in rat and mouse cancer a single exposure was identified in the observed at 101 mg/kg/day. This studies on XDE–729 acid, which is available database; therefore, no risk is NOAEL is protective of developmental classified as ‘‘not likely to be expected from acute dietary exposure to effects, observed in the rat at 526 mg/kg/ carcinogenic to humans.’’ XDE–729 acid. The chronic toxicity/ day (NOAEL = 140 mg/kg/day), and of carcinogenicity study using the rat was maternal toxicity in both the rat (LOAEL
TABLE 1(b)—SUMMARY OF TOXICOLOGICAL DOSES AND ENDPOINTS FOR XDE–729 ACID FOR USE IN HUMAN HEALTH RISK ASSESSMENT
Point of departure and RfD, PAD, LOC for Exposure/Scenario uncertainty/safety risk assessment Study and toxicological effects factors
Acute dietary (General popu- No hazard from a single exposure was identified in the available database; therefore, no risk is expected from lation including infants and this exposure scenario. children and females age 13– 49).
Chronic dietary (All populations) NOAEL = 20.3 mg/ Chronic RfD = 0.20 Rat two-year dietary chronic toxicity/carcinogenicity study kg/day (females). mg/kg/day. NOAEL = 101/20.3 mg/kg/day [M/F]. UFA = 10x cPAD = 0.20 mg/kg/ LOAEL = 404/101 mg/kg/day [M/F] based on increased mor- UFH = 10x day. tality, altered urinalysis parameters, decreased body weight, FQPA SF = 1x increased kidney weights, adrenal zone glomerulosa hyper- trophy, increased degeneration and regeneration of renal tu- bules and kidney stones, and bladder pathology in males; in females, hyperplasia of pelvic epithelium of the kidney.
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TABLE 1(b)—SUMMARY OF TOXICOLOGICAL DOSES AND ENDPOINTS FOR XDE–729 ACID FOR USE IN HUMAN HEALTH RISK ASSESSMENT—Continued
Point of departure and RfD, PAD, LOC for Exposure/Scenario uncertainty/safety risk assessment Study and toxicological effects factors
Cancer (Oral, dermal, inhala- Classification: Not likely to be carcinogenic to humans. tion). Point of Departure (POD) = A data point or an estimated point that is derived from observed dose-response data and used to mark the begin- ning of extrapolation to determine risk associated with lower environmentally relevant human exposures. NOAEL = no observed adverse effect level. LOAEL = lowest observed adverse effect level. UF = uncertainty factor. UFA = extrapolation from animal to human (interspecies). UFH = potential variation in sensitivity among members of the human population (intraspecies). FQPA SF = FQPA Safety Factor. PAD = population ad- justed dose (a = acute, c = chronic). RfD = reference dose. MOE = margin of exposure.
C. Exposure Assessment iv. Anticipated residue and percent flea and tick control on pets). 1. Dietary exposure from food and crop treated (PCT) information. EPA did Halauxifen-methyl is not used, nor is it feed uses. In evaluating dietary not use anticipated residue and/or PCT being proposed for use in any specific exposure to halauxifen-methyl and the information in the dietary assessment use patterns that would result in XDE–729 acid metabolite, EPA for halauxifen-methyl. Tolerance-level residential exposure. considered exposure under the residues and 100% CT were assumed 4. Cumulative effects from substances petitioned-for tolerances. EPA assessed for all food commodities. with a common mechanism of toxicity. dietary exposures to these compounds 2. Dietary exposure from drinking Section 408(b)(2)(D)(v) of FFDCA in food as follows: water. The Agency used screening-level requires that, when considering whether i. Acute exposure. Quantitative acute water exposure models in the dietary to establish, modify, or revoke a dietary exposure and risk assessments exposure analysis and risk assessment tolerance, the Agency consider are performed for a food-use pesticide, for halauxifen-methyl and its ‘‘available information’’ concerning the if a toxicological study has indicated the metabolites (primarily XDE–729 acid) in cumulative effects of a particular possibility of an effect of concern drinking water. These simulation pesticide’s residues and ‘‘other occurring as a result of a 1-day or single models take into account data on the substances that have a common exposure. No such effects were physical, chemical, and fate/transport mechanism of toxicity.’’ EPA has not identified in the toxicological studies characteristics of halauxifen-methyl and found halauxifen-methyl or XDE–729 for halauxifen-methyl or XDE–729 acid; its metabolites. Further information acid to share a common mechanism of therefore, quantitative acute dietary regarding EPA drinking water models toxicity with any other substances, nor exposure assessments were determined used in pesticide exposure assessment do they appear to produce any toxic unnecessary. can be found at http://www.epa.gov/ metabolites produced by other ii. Chronic exposure. In conducting oppefed1/models/water/index.htm. substances. For the purposes of this individual chronic dietary exposure Based on the Pesticide Root Zone tolerance action, therefore, EPA has assessments for these two compounds, Model/Exposure Analysis Modeling assumed that neither of these EPA used the food consumption data System (PRZM/EXAMS) and Pesticide compounds have a common mechanism collected between 2003 and 2008 for Root Zone Model Ground Water (PRZM of toxicity with other substances. For USDA’s National Health and Nutrition GW), the estimated drinking water information regarding EPA’s efforts to Survey/What We Eat in America concentrations (EDWCs) of halauxifen- determine which chemicals have a (NHANES/WWEIA). As to residue levels methyl were estimated for chronic common mechanism of toxicity and to in food, EPA used tolerance-level exposure in a non-cancer assessment. evaluate the cumulative effects of such residues and assumed 100 percent of all Based on the Screening Concentration chemicals, see EPA’s Web site at http:// wheat, barley and triticale acres are in Groundwater (SCI–GROW) model, www.epa.gov/pesticides/cumulative. treated. No processing factors were used the EDWCs of the XDE–729 acid D. Safety Factor for Infants and due to the lack of residue concentration metabolite were estimated for chronic Children in processed commodities. Residue exposure in a non-cancer assessment. chemistry data indicate that halauxifen- Modeled estimates of drinking water 1. In general. Section 408(b)(2)(C) of methyl (parent compound) converts to concentrations were directly entered FFDCA provides that EPA shall apply the XDE–729 acid metabolite so quickly into the dietary exposure model. For an additional tenfold (10X) margin of in the environment that dietary chronic dietary risk assessment of safety for infants and children in the exposure to halauxifen-methyl is halauxifen-methyl only, the water case of threshold effects to account for expected to be minimal. concentration value of 0.007 ppb was prenatal and postnatal toxicity and the iii. Cancer. Based on the data used to assess the contribution to completeness of the database on toxicity summarized in Unit III.A., EPA has drinking water. For chronic dietary risk and exposure unless EPA determines concluded that halauxifen-methyl does assessment of XDE–729 acid, a drinking based on reliable data that a different not pose a cancer risk to humans at dose water concentration value of 19.5 ppb margin of safety will be safe for infants levels that do not induce liver toxicity was used to assess the contribution to and children. This additional margin of or Cypla1 expression. EPA has also drinking water. safety is commonly referred to as the concluded that its XDE–729 acid 3. From non-dietary exposure. The FQPA Safety Factor (SF). In applying metabolite does not pose a cancer risk term ‘‘residential exposure’’ is used in this provision, EPA either retains the to humans. Therefore, separate dietary this document to refer to non- default value of 10X, or uses a different exposure assessments for the purpose of occupational, non-dietary exposure additional safety factor when reliable assessing cancer risk are determined to (e.g., for lawn and garden pest control, data available to EPA support the choice be unnecessary. indoor pest control, termiticides, and of a different factor.
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2. Prenatal and postnatal sensitivity. a single oral exposure was identified IV. Other Considerations There was no evidence of increased and no acute dietary endpoint was A. Analytical Enforcement Methodology prenatal susceptibility to either selected. Therefore, neither halauxifen- compound and no evidence of postnatal methyl, nor XDE–729 acid are expected Adequate enforcement methodology susceptibility to XDE–729 acid. to pose an acute risk. (LC–MS/MS) with a limit of quantitation of 0.01 ppm is available to Residual concerns for postnatal 2. Chronic risk. Using the exposure susceptibility to halauxifen-methyl in enforce the tolerance expression. The assumptions described in this unit for multi-residue method, QuEChERS, is the absence of reproductive toxicity data chronic exposure, EPA has concluded are low, due to selection of a adequate for the determination of both that chronic exposure to halauxifen- conservative endpoint and assumptions residues of halauxifen-methyl and XDE– methyl from food and water will utilize for dietary exposure, as well as the low 729 acid in crop commodities. The < 1% of the cPAD for all infants, the level of exposure expected from method may be requested from: Chief, population group receiving the greatest proposed use patterns. Analytical Chemistry Branch, 3. Conclusion. EPA has determined exposure. In addition, EPA has Environmental Science Center, 701 that reliable data show the safety of concluded that chronic exposure to Mapes Rd., Ft. Meade, MD 20755–5350; infants and children would be XDE–729 acid from drinking water will telephone number: (410) 305–2905; adequately protected if the FQPA SF also utilize < 1% of the cPAD for all email address: were reduced to 1x. That decision is infants. XDE–729 is not a residue of [email protected]. concern in food; therefore, the chronic based on the following findings: B. International Residue Limits i. The toxicity database for assessment was based on drinking water halauxifen-methyl and XDE–729 acid only for this acid metabolite. There are In making its tolerance decisions, EPA are complete. no residential uses for halauxifen- seeks to harmonize U.S. tolerances with ii. There is no indication that methyl being proposed at this time; international standards whenever halauxifen-methyl or XDE–729 acid are therefore chronic aggregate risk reflects possible, consistent with U.S. food neurotoxic chemicals and there is no only dietary exposure to potential safety standards and agricultural need for developmental neurotoxicity residues in food and drinking water. practices. EPA considers the studies or additional UFs to account for 3. Short-term risk. Short-term risk is international maximum residue limits neurotoxicity. assessed based on short-term residential (MRLs) established by the Codex iii. There is no evidence to suggest exposure plus chronic dietary exposure. Alimentarius Commission (Codex), as that exposure to halauxifen-methyl or Because there is no short-term required by FFDCA section 408(b)(4). XDE–729 acid results in increased in residential exposure and chronic dietary The Codex Alimentarius is a joint utero susceptibility in rats or rabbits in exposure has already been assessed United Nations Food and Agriculture Organization/World Health the prenatal developmental studies or in under the appropriately protective Organization food standards program, young rats in the 2-generation cPAD (which is at least as protective as and it is recognized as an international reproduction study. the POD used to assess short-term risk), iv. There are no residual uncertainties food safety standards-setting no further assessment of short-term risk identified in the exposure databases. organization in trade agreements to is necessary. The chronic dietary food exposure which the United States is a party. EPA assessment was based on 100 PCT and 4. Intermediate-term risk. may establish a tolerance that is tolerance-level residues. EPA also made Intermediate-term risk is assessed based different from a Codex MRL; however, conservative assumptions in the ground on intermediate-term residential FFDCA section 408(b)(4) requires that and surface water modeling used to exposure plus chronic dietary exposure. EPA explain the reasons for departing assess exposure to halauxifen-methyl Because there is no intermediate-term from the Codex level. and XDE–729 acid in drinking water. residential exposure and chronic dietary No MRLs have been established by These assessments will not exposure has already been assessed Codex for halauxifen-methyl on the underestimate the exposure and risks under the appropriately protective commodities affected by this action. cPAD, no further assessment of posed by these compounds. C. Revisions to Petitioned-For intermediate-term risk is necessary. E. Aggregate Risks and Determination of Tolerances 5. Aggregate cancer risk for U.S. Safety As noted in Unit II, the petitioned-for population. Long-term dietary studies livestock commodity tolerances (milk; EPA determines whether acute and conducted with XDE–729 acid in the rat fat, meat, meat byproducts of cattle, chronic dietary pesticide exposures are and the mouse showed no evidence of goat, horse, and sheep) are not being safe by comparing aggregate exposure carcinogenicity. Based on the MOA and estimates to the acute PAD (aPAD) and established due to the lack of bridging data on halauxifen-methyl, chronic PAD (cPAD). For linear cancer quantifiable residues in livestock which allowed identification of a POD risks, EPA calculates the lifetime commodities associated with the for liver cancer, halauxifen-methyl is probability of acquiring cancer given the proposed uses in wheat, barley and not expected to pose a cancer risk to estimated aggregate exposure. Short-, triticale. In addition, although the humans at dose levels below those that intermediate-, and chronic-term risks petitioner proposed a tolerance of 0.04 induce liver Cyp1a1 expression. are evaluated by comparing the ppm for wheat, hay, EPA has Genotoxicity studies were negative for estimated aggregate food, water, and determined that a tolerance of 0.03 ppm both compounds. residential exposure to the appropriate is appropriate. When the petitioner PODs to ensure that an adequate MOE 6. Determination of safety. Based on determined the proposed tolerances, the exists. these risk assessments, EPA concludes metabolite XDE–729 acid was included 1. Acute risk. An acute aggregate risk that there is a reasonable certainty that as a residue of concern. EPA has assessment takes into account acute no harm will result to the general subsequently determined that this exposure estimates from dietary population, or to infants and children metabolite is not a residue of concern consumption of food and drinking from aggregate exposure to halauxifen- for tolerance enforcement. Residues of water. No adverse effect resulting from methyl and XDE–729 acid residues. metabolite XDE–729 acid were not
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quantifiable in any of the residue field responsibilities established by Congress halauxifen-methyl, including its trials. Therefore, the values for in the preemption provisions of FFDCA metabolites and degradates, in or on the measuring compliance with these section 408(n)(4). As such, the Agency commodities in the table below. tolerances only include residues of has determined that this action will not Compliance with the tolerance levels halauxifen-methyl. With the exception have a substantial direct effect on States specified below is to be determined by of wheat, hay, this revision to the or tribal governments, on the measuring only halauxifen-methyl residues of concern for tolerance relationship between the national (methyl (4-amino-3-chloro-6-(4-chloro- enforcement had no impact on the plant government and the States or tribal 2-fluoro-3-methoxyphenyl)-2-pyridine commodity tolerances. governments, or on the distribution of carboxylate). power and responsibilities among the V. Conclusion various levels of government or between Commodity Parts per million Therefore, tolerances are established the Federal Government and Indian for residues of halauxifen-methyl, tribes. Thus, the Agency has determined Barley, grain ...... 0.01 (methyl 4-amino-3-chloro-6-(4-chloro-2- that Executive Order 13132, entitled Barley, hay ...... 0.01 fluoro-3-methoxyphenyl) pyridine-2- ‘‘Federalism’’ (64 FR 43255, August 10, Barley, straw ...... 0.01 carboxylate) and its major metabolite, Wheat, forage ...... 0.50 1999) and Executive Order 13175, Wheat, grain ...... 0.01 XDE–729 acid, expressed as halauxifen- entitled ‘‘Consultation and Coordination Wheat, hay ...... 0.03 methyl (parent) equivalents, in or on with Indian Tribal Governments’’ (65 FR Wheat, straw ...... 0.015 barley, (grain, hay, straw) and wheat, 67249, November 9, 2000) do not apply grain at 0.01 ppm; wheat, forage at 0.50 to this action. In addition, this action (b) Section 18 emergency exemptions. ppm; wheat, hay at 0.03 ppm; and does not impose any enforceable duty or [Reserved] wheat, straw at 0.015 ppm. contain any unfunded mandate as (c) Tolerances with regional VI. Statutory and Executive Order described under Title II of the Unfunded registrations. [Reserved] Reviews Mandates Reform Act (UMRA) (2 U.S.C. (d) Indirect or inadvertent residues. 1501 et seq.). [Reserved] This action establishes tolerances This action does not involve any [FR Doc. 2016–19118 Filed 8–10–16; 8:45 am] under FFDCA section 408(d) in technical standards that would require BILLING CODE 6560–50–P response to a petition submitted to the Agency consideration of voluntary Agency. The Office of Management and consensus standards pursuant to section Budget (OMB) has exempted these types 12(d) of the National Technology ENVIRONMENTAL PROTECTION of actions from review under Executive Transfer and Advancement Act AGENCY Order 12866, entitled ‘‘Regulatory (NTTAA) (15 U.S.C. 272 note). Planning and Review’’ (58 FR 51735, 40 CFR Part 271 October 4, 1993). Because this action VII. Congressional Review Act has been exempted from review under Pursuant to the Congressional Review [EPA–R06–RCRA–2016–0176; FRL–9950– Executive Order 12866, this action is Act (5 U.S.C. 801 et seq.), EPA will 13–Region 6] not subject to Executive Order 13211, submit a report containing this rule and Arkansas: Final Authorization of State entitled ‘‘Actions Concerning other required information to the U.S. Hazardous Waste Management Regulations That Significantly Affect Senate, the U.S. House of Program Revision Energy Supply, Distribution, or Use’’ (66 Representatives, and the Comptroller FR 28355, May 22, 2001) or Executive General of the United States prior to AGENCY: Environmental Protection Order 13045, entitled ‘‘Protection of publication of the rule in the Federal Agency (EPA). Children from Environmental Health Register. This action is not a ‘‘major ACTION: Direct final rule. Risks and Safety Risks’’ (62 FR 19885, rule’’ as defined by 5 U.S.C. 804(2). SUMMARY: The State of Arkansas has April 23, 1997). This action does not List of Subjects in 40 CFR Part 180 contain any information collections applied to the United States subject to OMB approval under the Environmental protection, Environmental Protection Agency (EPA) Paperwork Reduction Act (PRA) (44 Administrative practice and procedure, for final authorization of the changes to U.S.C. 3501 et seq.), nor does it require Agricultural commodities, Pesticides its hazardous waste program under the any special considerations under and pests, Reporting and recordkeeping Resource Conservation and Recovery Executive Order 12898, entitled requirements. Act (RCRA). EPA has determined that ‘‘Federal Actions to Address Dated: July 28, 2016. these changes satisfy all requirements Environmental Justice in Minority Jack E. Housenger, needed to qualify for final authorization, Populations and Low-Income Director, Office of Pesticide Programs. and is authorizing the State’s changes Populations’’ (59 FR 7629, February 16, Therefore, 40 CFR chapter I is through this direct final rule. In the 1994). amended as follows: ‘‘Proposed Rules’’ section of this Since tolerances and exemptions that Federal Register, EPA is also publishing are established on the basis of a petition PART 180—[AMENDED] a separate document that serves as the under FFDCA section 408(d), such as proposal to authorize these changes. the tolerances in this final rule, do not ■ 1. The authority citation for part 180 EPA believes this action is not require the issuance of a proposed rule, continues to read as follows: controversial and does not expect the requirements of the Regulatory Authority: 21 U.S.C. 321(q), 346a and 371. comments that oppose it. Unless EPA receives written comments which Flexibility Act (RFA) (5 U.S.C. 601 et ■ 2. Add § 180.691 to subpart C to read oppose this authorization during the seq.), do not apply. as follows: This action directly regulates growers, comment period, the decision to food processors, food handlers, and food § 180.691 Halauxifen-methyl; tolerances authorize Arkansas’ changes to its retailers, not States or tribes, nor does for residues. hazardous waste program will take this action alter the relationships or (a) General. Tolerances are effect. If EPA receives comments that distribution of power and established for residues of the herbicide, oppose this action, EPA will publish a
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document in the Federal Register comment, the EPA recommends that modified or when certain other changes withdrawing this direct final rule before you include your name and other occur. Most commonly, States must it takes effect, and the separate contact information in the body of your change their programs because of document in the ‘‘Proposed Rules’’ comment and with any disk or CD–ROM changes to the EPA’s regulations in 40 section of this Federal Register will you submit. If the EPA cannot read your CFR parts 124, 260 through 268, 270, serve as the proposal to authorize the comment due to technical difficulties 273, and 279. changes. and cannot contact you for clarification, New Federal requirements and the EPA may not be able to consider DATES: This final authorization is prohibitions imposed by Federal your comment. Electronic files should effective on October 11, 2016 unless the regulations that the EPA promulgates EPA receives adverse written comment avoid the use of special characters, any form of encryption, and be free of any pursuant to the Hazardous and Solid by September 12, 2016. If the EPA Waste Amendments of 1984 (HSWA) receives such comment, EPA will defects or viruses. (For additional information about the EPA’s public take effect in authorized States at the publish a timely withdrawal of this same time that they take effect in direct final rule in the Federal Register docket, visit the EPA Docket Center homepage at http://www.epa.gov/ unauthorized States. Thus, the EPA will and inform the public that this implement those requirements and authorization will not take effect. epahome/dockets.htm.) Docket: All documents in the docket prohibitions in the State of Arkansas, ADDRESSES: Submit your comments by are listed in the http:// including the issuance of new permits one of the following methods: www.regulations.gov index. Although implementing those requirements, until • Federal eRulemaking Portal: http:// listed in the index, some information is the State is granted authorization to do www.regulations.gov. Follow the on-line not publicly available, e.g., CBI or other so. instructions for submitting comments. information whose disclosure is • Email: [email protected]. II. What decisions has the EPA made in restricted by statute. Certain other • Fax: (214) 665–6762 (prior to this rule? faxing, please notify Alima Patterson at material, such as copyrighted material, (214) 665–8533). will be publicly available only in hard On November 30, 2015, Arkansas • Mail: Alima Patterson, Region 6, copy. Publicly available docket submitted a final complete program Regional Authorization Coordinator, materials are available either revision application seeking RCRA Permit Section (RPM), electronically in http:// authorization of changes to its Multimedia Planning and Permitting www.regulations.gov, or in hard copy. hazardous waste program that Division, EPA Region 6, 1445 Ross You can view and copy Arkansas’ correspond to certain Federal rules Avenue, Dallas Texas 75202–2733. application and associated publicly promulgated between October 4, 2005 • Hand Delivery or Courier: Deliver available materials from 8:30 a.m. to 4 and January 3, 2014, including the p.m. Monday through Friday at the your comments to Alima Patterson, adoption of portions of RCRA Clusters following locations: Arkansas Region 6, Regional Authorization XVI and XVII, and RCRA Clusters XXII Department of Environmental Quality Coordinator, RCRA Permit Section and XXIII (Checklists 211, 213, 214, and (ADEQ), 8101 Interstate 30, Little Rock, (RPM), Multimedia Planning and 228 through 232). The EPA concludes Permitting Division, EPA Region 6, 1445 Arkansas 72219–8913, (501) 682–0876, and EPA, Region 6, 1445 Ross Avenue, that Arkansas’ application to revise its Ross Avenue, Dallas Texas 75202–2733. authorized program meets all of the Instructions: EPA must receive your Dallas, Texas 75202–2733, phone number (214) 665–8533. Interested statutory and regulatory requirements comments by September 12, 2016. established by RCRA, as set forth in Direct your comments to Docket ID persons wanting to examine these RCRA section 3006(b), 42 U.S.C. Number EPA–R06–RCRA–2016–0176. documents should make an 6926(b), and 40 CFR part 271. Therefore, The EPA’s policy is that all comments appointment with the office at least two the EPA grants Arkansas final received will be included in the public weeks in advance. authorization to operate its hazardous docket without change and may be FOR FURTHER INFORMATION CONTACT: waste program with the changes made available online at http:// Alima Patterson, Region 6 Regional www.regulations.gov, including any Authorization Coordinator, RCRA described in the authorization personal information provided, unless Permit Section (RPM), Multimedia application, and as outlined below in the comment includes information Planning and Permitting Division, (214) Section G of this document. The State claimed to be Confidential Business 665–8533, EPA Region 6, 1445 Ross of Arkansas has responsibility for Information (CBI), or other information Avenue, Dallas, Texas 75202–2733, and permitting treatment, storage, and whose disclosure is restricted by statute. email address [email protected]. disposal facilities (TSDFs) within its borders (except in Indian Country) and Do not submit information that you SUPPLEMENTARY INFORMATION: consider to be CBI or otherwise for carrying out the aspects of the RCRA protected through regulations.gov, or I. Why are revisions to State programs program described in its revised email. The Federal regulations.gov Web necessary? program application, subject to the site is an ‘‘anonymous access’’ system, States which have received final limitations of HSWA, as discussed which means the EPA will not know authorization from the EPA under RCRA above. New Federal requirements and your identity or contact information section 3006(b), 42 U.S.C. 6926(b), must prohibitions imposed by Federal unless you provide it in the body of maintain a hazardous waste program regulations that the EPA promulgates your comment. If you send an email that is equivalent to, consistent with, under the authority of HSWA take effect comment directly to the EPA without and no less stringent than the Federal in authorized States before they are going through regulations.gov, your program. As the Federal program authorized for the requirements. Thus, email address will be automatically changes, States must change their the EPA will implement those captured and included as part of the programs and ask the EPA to authorize requirements and prohibitions in comment that is placed in the public the changes. Changes to State programs Arkansas, including issuing permits, docket and made available on the may be necessary when Federal or State until the State is granted authorization Internet. If you submit an electronic statutory or regulatory authority is to do so.
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III. What is the effect of this then address all public comments in a responsibilities remain the same. Any authorization decision? later final rule. You may not have differences between the State’s another opportunity to comment. If you provisions and the Federal provisions The effect of this decision is that a want to comment on this authorization, are noted on the individual revision facility in Arkansas subject to RCRA you must do so at this time. Checklists. The official State regulations will now have to comply with the If EPA receives comments that oppose may be found in Arkansas Pollution authorized State requirements instead of only the authorization of a particular Control and Ecology Commission the equivalent Federal requirements in change to the State hazardous waste Regulation Number 23 (Hazardous order to comply with RCRA. Arkansas program, EPA will withdraw only that Waste Management), last amended has enforcement responsibilities under part of this rule, but the authorization of September 25, 2015, effective October its State hazardous waste program for the program changes that the comments 18, 2015. violations of such program, but the EPA do not oppose will become effective on The provisions for which the State is retains its authority under RCRA the date specified in this document. The seeking authorization are documented sections 3007, 3008, 3013, and 7003, Federal Register withdrawal document in the Rule Revision Checklists 211, which include, among others, authority will specify which part of the 213, 214, and 228 through 232, which to: authorization will become effective, and • are portions of RCRA Clusters XVI and Do inspections, and require which part is being withdrawn. monitoring, tests, analyses, or reports; XVII, and RCRA Clusters XXII and • Enforce RCRA requirements and VI. For what has Arkansas previously XXIII. Reference to Arkansas Code suspend or revoke permits; and been authorized? Annotate (A.C.A) of 1987, Annotated, as • Take enforcement actions after Arkansas initially received final amended August 2015. Reference to notice to and consultation with the authorization on January 25, 1985, (50 Arkansas Pollution Control and Ecology State. FR 1513) to implement its Base Commission (APC&EC) Regulations This action does not impose Hazardous Waste Management program. Number 23, (Hazardous Waste additional requirements on the Arkansas received authorization for Management) (formerly titled the regulated community because the revisions to its program on January 11, Arkansas Hazardous Waste Management regulations for which Arkansas is being 1985 (50 FR 1513), effective January 25, Code), last amended September 25, authorized by this action are already 1985; March 27, 1990 (55 FR 11192), 2015, to adopt all final rules effective under State law, and are not effective May 29, 1990; September 18, promulgated by the EPA through June changed by this action. 1991 (56 FR 47153), effective November 26 2014, which became, effective on 18, 1991; October 5, 1992 (57 FR 45721), October 18, 2015. Dates of enactment IV. Why is EPA using a direct final effective December 4, 1992; October 7, and adoption for other statutes or rule? 1994 (59 FR 51115), effective December regulations are given when cited. Along with this direct final rule, the 21, 1994; April 24, 2002 (67 FR 20038), VII. What changes is the EPA EPA is publishing a separate document effective June 24, 2002; and August 15, authorizing with this action? in the ‘‘Proposed Rules’’ section of this 2007 (72 FR 45663), effective October Federal Register that serves as the 15, 2007. The authorized Arkansas On November 30, 2015, the State of proposal to authorize these State RCRA program was incorporated by Arkansas submitted a final complete program changes. The EPA did not reference into the Code of Federal program revision application, seeking publish a proposal before this rule Regulations effective December 13, 1993 authorization of their changes in because EPA views this as a routine (58 FR 52674); June 28, 2010 (75 FR accordance with 40 CFR 271.21. We program change and do not expect 36538), effective August 27, 2010; now make a direct final decision, comments. The EPA also views the August 10, 2012 (77 FR 47779), effective subject to receipt of written comments Arkansas program revisions as October 9, 2012; and October 31, 2014 that oppose this action, that the State of noncontroversial action and anticipates (79 FR 64678), effective December 30, Arkansas’ hazardous waste program no adverse comment. 2014. The authorized Arkansas RCRA revision is equivalent to, consistent EPA is providing an opportunity for program was incorporated by reference with, and no less stringent than the public comment now, as described in into the Code of Federal Regulations Federal program, and therefore satisfies Section E of this document. October 12, 1993 (58 FR 52674) effective all of the requirements necessary to December 13, 1993; June 20, 1995 (60 qualify for final authorization. V. What happens if the EPA receives FR 32112) effective August 21, 1995; Therefore, the EPA grants the State of comments that oppose this action? June 28, 2010 (75 FR 36538) effective Arkansas final authorization for If the EPA receives comments that August 27, 2010; October 2, 2014 (79 FR portions of RCRA Clusters XVI and oppose this authorization, EPA will 59438) effective December 1, 2014; XVII, and RCRA Clusters XXII and XXIII withdraw this direct final rule by January 29, 2016 (81 FR 4961) effective (Checklists 211, 213, 214, and 228 publishing a document in the Federal March 29, 2016. On November 30, 2015, through 232). The State of Arkansas Register before the rule becomes Arkansas submitted a final complete program revisions consist of regulations effective. The EPA will base any further program revision application seeking which specifically govern Federal decision on the authorization of the authorization of its program revision in Hazardous Waste revisions promulgated State program changes on the proposal accordance with 40 CFR 271.21. October 4, 2005, April 4, 2006, July 14, mentioned in the previous section, after The ADEQ has re-organized its agency 2006, April 13, 2012, and July 2013 considering all comments received and division’s program areas and through June 2014, which are listed in during the comment period. EPA will subunits, but all duties and a chart below.
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Description of Federal requirement Federal Register date and page (include checklist #, (and/or RCRA statutory authority) Analogous state authority if relevant)
1. Revision of Waste- 70 FR 57769–57785 October 4, 2005 .. Arkansas Code of 1987 Annotated (A.C.A.) Sections 8–7–201 through 8–7– water Treatment 226. Arkansas Pollution Control and Ecology (APC&E) Regulation Number Exemptions for 23, (Hazardous Waste Management) (HWM) Sections 261.3(a)(2)(iv)(A), (B), Hazardous Waste (D), (F), and (G), as amended September 25, 2015, effective on October 18, Mixtures 2015. (‘‘Headworks ex- emptions’’). (Checklist 211). 2. Burden Reduction 71 FR 16862–16915 April 4, 2006 ...... Arkansas Code of 1987 Annotated (A.C.A.) Sections 8–7–201 through 8–7– Initiative. (Checklist 226. Arkansas Pollution Control and Ecology (APC&E) Regulation Number 213). 23, (Hazardous Waste Management) (HWM) Sections 260.31(b)(2)–(b)(7), 261.4(a)(9)(iii)(E), 261.4(f)(9), 264.15(b)(4), 264.16(a)(4), 264.52(b), 264.56(i), 264.73(b) introductory paragraph, (b)(1), (b)(2), (b)(6), (b)(8), (b)(10), (b)(18), and (19), 264.98(d), 264.98(g)(2) and (g)(3), 264.99(f) and (g), 264.100(g), 264.113(e)(5), 264.115 1, 264.120 1, 264.143(i) 1, 264.145(i) 1, 264.147(e) 1, 264.174, 264.191(a) 1, 264.191(b)(5)(ii) 1, 264.192(a) introductory paragraph 1 and (b) introductory paragraph 1, 264.193(a)(1) and (a)(2), 264.193(i)(2) 1, 264.195(b)–(g), 264.196(f) 1, 264.251(c) introductory paragraph, 264.280(b) 1, 264.314, 264.343(a)(2), 264.347(d), 264.554(c)(2) 1, 264.571(a)–(c) 1, 264.573(a)(4)(ii) 1, 264.573(g) 1, 264.574(a) 1, 264.1061(b)(1) and (b)(2), 264.1062(a), 264.1100 introductory paragraph, 264.1101(c)(2) 1, 265.15(b)(4), 265.16(a)(4), 265.52(b), 265.56(i), 265.73(b) introductory paragraph, 265.73(b)(1) and (b)(2), 265.73(b)(6)–(8), 265.73(b)(15), 265.90(d)(1) and (d)(3), 265.93(d)(2) and (d)(5), 265.113(e)(5), 265.115 1, 265.120 1, 265.143(h) 1, 265.145(h) 1, 265.147(e) 1, 265.174, 265.191(a) 1, 265.191(b)(5)(ii) 1, 265.192(a) introductory paragraph 1 and (b) introductory paragraph 1, 265.193(a)(1)–(2), 265.193(i)(2) 1, 265.195(a)–(c), 265.195(e)–(g), 265.196(f) 1, 265.201(c) introductory paragraph, 265.201(d), 265.201(f)–(h), 265.221(a), 265.224, 265.259(a), 265.280(e) 1, 265.301(a), 265.303(a), 265.314, 265.441(a)–(c) 1, 265.443(a)(4)(ii) 1, 265.443(g) 1, 265.444(a) 1, 265.1061(b)(1) and (b)(2), 265.1061(d), 265.1062(a), 265.1100 introductory paragraph, 265.1101(c)(2) 1, 266.102(e)(10), 266.103(d) and (k), 268.7(a)(1) and (a)(2), 268.7(b)(6), 268.9(a) and (d), 270.14(a) 1, 270.16(a) 1, 270.26(c)(15) 1, and 270.42 Appendix I, Item O except Item O.1, as amended September 25, 2015, effective on October 18, 2015. 3. Correction to Er- 71 FR 40254–40280 July 14, 2006 ...... Arkansas Code of 1987 Annotated (A.C.A.) Sections 8–7–201 through 8–7– rors in the Code of 226. Arkansas Pollution Control and Ecology (APC&E) Regulation Number Federal Regula- 23, (Hazardous Waste Management) (HWM) Sections 260.10 ‘‘Incompatible tions. (Checklist Waste’’, ‘‘Personnel or facility personnel’’, ‘‘Universal waste’’, and ‘‘Used oil’’, 214). 260.22(a)(1), 260.22(d)(1)(ii), 260.40(a), 260.41 introductory paragraph, 261.2(c)(1)(i), 261.3(a)(2)(i), 261.4(a)(20)(v), 261.4(b)(6)(i)(B), 261.4(b)(6)(ii) introductory paragraph, 261.4(b)(6)(ii)(D) and (F), 261.4(b)(9), 261.4(e)(2)(vi), 261.4(e)(3)(i), 261.6(a)(2)(i)–(v), 261.6(c)(2), 261.21(a)(3) and (a)(4), 261.21/ Notes 1–4, 261.24(b), 261.31(a)/Table, 261.32/Table ‘‘K107’’ and ‘‘K069’’ en- tries, 261.33(e), 261.33(e)/Comment, 261.33(e)/Table, 261.33(f), 261.33(f)/ Comment, 261.33(f)/Table, 261.38/Table 1, 261.38(c)(1)(i)(C)(4), Part 261, Appendix VII, Part 261, Appendix VIII, 262.34(a)(1)(iv), 262.53(b), 262.56(b), 262.58(a)(1), 262.70, 262.81(k), 262.82(a)(1)(ii), 262.83(b)(1)(i), 262.83(b)(2)(i), 262.84(e), 262.87(a), 262.87(a)(5) introductory paragraph, 264.1(g)(2), 264.4, 264.13(b)(7)(iii)(B), 264.17(b) introductory paragraph, 264.18(a)(2)(iii), 264.18(b)(2)(iii), 264.97(a)(1) introductory paragraph, 264.97(a)(1)(i), 264.97(i)(5), 264.98(a)(2), 264.98(g)(4)(i), 264.99(h)(2) intro- ductory text, 264.101(d), 264.111(c), 264.112(b)(8), 264.115, 264.116, 264.118(c), 264.119(b)(1)(ii), 264.140(d)(1), 264.142(b)(2), 264.143(b)(7) and (b)(8), 264.143(e)(5), 264.145(a)(3)(i), 264.145(d)(6), 264.145(f)(11) introduc- tory paragraph, 264.147(h)(1), 264.151(b), 264.151(f) introductory paragraph, 264.151(g), Letter From Chief Financial Officer, fifth paragraph, item 3, Part A, Alternative I, item *3, Part B, Alternative I, items 10 and 15, and Part B, Alternative II, item *7, 264.151(h)(2) Guarantee For Liability Coverage, Cer- tification of Valid Claim Recitals, item 13.(a), and Recitals, item 14, 264.151(i), item 2.(e), 264.151(j), item 2.(d), 264.151(k), Irrevocable Standby Letter of Credit and CERTIFICATE OF VALID CLAIM, 264.151(1), 264.151(1), CERTIFICATION OF VALID CLAIM, 264.151(m)(1), CERTIFI- CATION OF VALID CLAIM, Section 8.(c), 264.151(n)(1), under STANDBY TRUST AGREEMENT Section 3.(c)(1), Section 3.(e)(3), and Sections 12 and 16, 264.175(b)(1),264.193(c)(4) Note, (d)(4), (e)(2)(ii) and (iii), (e)(2)(v)(A) and (B), (e)(3)(i) and (ii), (g)(1)(iii) and (iv), and (g)(2)(i)(A), 264.221(c)(1)(i)(B), (c)(2)(ii), (e)(1), and (e)(2)(i)(B) and (C), 264.223(b)(1), 264.226(a)(2), 264.251(a)(2)(i)(A),
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Description of Federal requirement Federal Register date and page (include checklist #, (and/or RCRA statutory authority) Analogous state authority if relevant)
264.252(a) and (b), 264.259(b), 264.280(c)(7) and (d) introductory para- graph, 264.283(a), 264.301(c)(2), 264.301(e)(2)(i)(B), 264.302(a), (b) and (b)(1), 264.314(e)(2), 264.317(a) introductory paragraph, 264.344(b), 264.552(e)(4)(iii), (e)(4)(iv)(F), and (e)(6)(iii)(E), 264.553(e) introductory para- graph, 264.554(a) introductory paragraph, 264.555(e)(6), 264.573(a)(1), (a)(4)(i), (a)(5), (b) introductory paragraph, and (m)(2) and (m)(3), 264.600, 264.601(a) introductory paragraph, (b)(11), and (c)(4), 264.1030(c), 264.1033(f)(2)(vii)(B), 264.1034(b)(2), 264.1035(c)(4)(i) and (ii), 264.1050(f), 264.1058(c)(1), 264.1064(c)(3), 264.1080(a) and (c), 264.1090(c), 264.1101(b)(3)(iii),(c)(3) introductory paragraph, (c)(3)(i), and (d) introductory paragraph, 264.1102(a), Part 264, Appendix I/Table 1, Part 264, Appendix I/ Table 2, Section 2.(d), 265.1(c)(4)(i), 265.1(c)(6), 265.12(a)(1), 265.14(b)(1), 265.16(b), 265.19(c)(2), 265.56(b), 265.90(d) introductory paragraph, 265.110(b)(4), 265.111(c), 265.112(b)(5), 265.112(d)(4), 265.113(b) introduc- tory paragraph, 265.113(e)(4), 265.117(b) introductory paragraph, 265.119(b)(1)(ii), 265.140(b) introductory paragraph and (b)(2), 265.142(a), 265.145(e)(11), 265.147(a)(1)(i) and (b)(1)(i) and (ii), 265.174, 265.193(e)(2)(v)(A) and (B) and (i)(2), 265.194(b)(1) and (2), 265.197(b), 265.201(c) introductory paragraph, 265.221(a) and(d)(2)(i)(A) and (B), 265.224(b)(1), 265.228(a)(2)(iii)(D) and(b)(2), 265.229(b)(2) and (b)(3), 265.255(b), 265.259(b)(1), 265.280(a)(4), 265.281(a)(1), 265.301(a), (d)(1), and (d)(2)(i)(B), 265.302(b), 265.303(b)(1), 265.312(a)(1), 265.314(e)(1)(ii) and(f)(2), 265.316 introductory paragraph, (c) and (d), 265.405(a)(1), 265.441(c), 265.443(a)(4)(i) and (b) introductory paragraph, 265.445(b), 265.1033(f)(2)(ii), 265.1035(b)(2) introductory paragraph, (b)(2)(i), and 265.1035(c)(4)(i), 265.1063(b)(4)(ii), 265.1080(a), 265.1085(h)(3) introductory paragraph, 265.1087(b), 265.1090(f)(1), 265.1100(d), 265.1101(b)(3)(i)(B), (b)(3)(iii), (c)(3) introductory paragraph, and (d) introductory paragraph, Part 265, Appendix I/Tables 1–2, Part 265, Appendix V/Table, Part 265, Appendix VI, 266.70(a), 266.80(a)/Table, 266.100(b)(2)(iv), 266.100(d)(3)(i)(A), 266.100(g) introductory paragraph, 266.102(a)(2)(vi), 266.102(e)(3)(i)(E), (e)(5)(i)(C), (e)(6)(ii)(B)(2), and (e)(8)(iii), 266.103(a)(4)(vii), 266.103(b)(2)(v)(B)(2), (b)(5)(ii)(A), and (b)(6)(viii)(A), 266.103(c)(1)(i), (c)(1)(ii)(A)(2), (c)(1)(ix) introductory paragraph, (c)(1)(ix)(A), and (c)(4)(iv)(C)(1), 266.103(g)(1)(i), 266.106(d)(1), 266.109(a)(2)(ii) and (b) intro- ductory paragraph, Part 266, subpart N heading, Part 266, Appendices III through VI, Part 266, Appendix VIII, 3(b)(2), Part 266, Appendix XIII, 267.147(f)(2)(i)(A), 268.2(g), 268.4(a)(3) introductory paragraph, 268.6(c)(5) introductory paragraph, 268.7(a)(1), (a)(3)(ii), (a)(4)/Table entry 8, (b)(3)(ii)/ Table, entry 5, (b)(4)(ii), (c)(2), (d) introductory paragraph, (d)(1) introductory paragraph, (d)(1)(i)–(iii), and (d)(2) and (d)(3), 268.14(b) and (c), 268.40(g), 268.40/Table ‘‘TREATMENT STANDARDS FOR HAZARDOUS WASTES’’, 268.42/Table 1, 268.44(c), 268.45/Table 1, 268.48/Table ‘‘UNIVERSAL TREATMENT STANDARDS’’, 268.49(d), 268.50(c), 268.50(g), Part 268, Ap- pendix VIII, 270.1(a)(2)/Table, 270.1(b) introductory paragraph, 270.1(c)(1)(iii), 270.1(c)(3)(i) introductory paragraph, 270.2 ‘‘On-site’’ and ‘‘Publicly owned treatment works (POTW)’’, 270.10(j), 270.11(d)(1) and (2), 270.13(k)(7), 270.14(a), (b)(11)(ii)(B), (b)(19)(iii), and (b)(21), 270.17(f), 270.18(b) and (g), 270.20(i)(2), 270.26(c)(15), 270.33(b) introductory para- graph, 270.41(c), 270.42(d)(2)(i), 270.42, Appendix I, 270.70(a) introductory paragraph, 270.72(b)(2), 273.9 ‘‘Universal waste’’, 273.13(b) introductory paragraph, 273.14(a), 273.34(a), 279.1 ‘‘Petroleum refining facility’’, 279.10(b)(2) introductory paragraph, 279.11, 279.11/Table 1, 279.43(c)(3)(i) and (c)(5), 279.44(a) and (c)(2), 279.45(a), 279.52(a) and (b), (b)(1)(ii) and (b)(6)(ii) and (iii), 279.55(a) introductory paragraph, and (b)(2)(i)(B), 279.56(a)(2), 279.57(a)(2)(ii), 279.59, 279.63(b)(3), 279.64(e), and 279.70(b)(1), as amended September 25, 2015, effective on October 18, 2015. 4. Hazardous Waste 77 FR 22229–22232 April 13, 2012 ..... Arkansas Code of 1987 Annotated (A.C.A.) Sections 8–7–201 through 8–7– Technical Correc- 226. Arkansas Pollution Control and Ecology (APC&E) Regulation Number tions and Clarifica- 23, (Hazardous Waste Management) (HWM) Sections 261.32(a), entry for tion Rule. (Check- K107, and 266.20(b), as amended September 25, 2015, effective on October list 228). 18, 2015. 5. Conditional Exclu- 78 FR 46448–46485 July 31, 2013 ...... Arkansas Code of 1987 Annotated (A.C.A.) Sections 8–7–201 through 8–7– sions for Solvent 226. Arkansas Pollution Control and Ecology (APC&E) Regulation Number Contaminated 23, (Hazardous Waste Management) (HWM) Sections 260.10 ‘‘No free liq- Wipes. (Checklist uids’’, 260.10 ‘‘Solvent-contaminated wipe’’, 260.10 ‘‘Wipe’’, 261.4(a)(26), 229). and 261.4(b)(18), as amended September 25, 2015, effective on October 18, 2015.
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Description of Federal requirement Federal Register date and page (include checklist #, (and/or RCRA statutory authority) Analogous state authority if relevant)
6. Conditional Exclu- 79 FR 350–364 January 3, 2014 ...... Arkansas Code of 1987 Annotated (A.C.A.) Sections 8–7–201 through 8–7– sion for Carbon Di- 226. Arkansas Pollution Control and Ecology (APC&E) Regulation Number oxide (CO2) 23, (Hazardous Waste Management) (HWM) Sections 260.10 ‘‘Carbon diox- Streams in Geo- ide stream’’, and 261.4(h), as amended September 25, 2015, effective on logic Sequestration October 18, 2015. Activities. (Check- list 230). 7. Hazardous Waste 79 FR 7518–7563 February 7, 2014 .... Arkansas Code of 1987 Annotated (A.C.A.) Sections 8–7–201 through 8–7– Electronic Manifest 226. Arkansas Pollution Control and Ecology (APC&E) Regulation Number Rule. (Checklist 23, (Hazardous Waste Management) (HWM) Sections 260.2, 260.10 ‘‘Elec- 231). tronic manifest (or e-manifest)’’, ‘‘Electronic manifest system (or e-manifest system)’’, ‘‘Manifest’’, ‘‘User of the electronic manifest system’’, 262.20(a)(3), 262.24, 262.25, 263.20(a), 263.25(a), 264.71(a)(2), 264.71(g)–(l), 265.71(a)(2), 265.71(g)–(l), as amended September 25, 2015, effective on October 18, 2015. (See Section I. Electronic Manifest provisions that are non-delegable to States.) 8. Revisions to the 79 FR 36220–36231 June 26, 2014 ..... Arkansas Code of 1987 Annotated (A.C.A.) Sections 8–7–201 through 8–7– Export Provisions 226. Arkansas Pollution Control and Ecology (APC&E) Regulation Number of the Cathode 23, (Hazardous Waste Management) (HWM) Sections 260.10 ‘‘CRT ex- Ray Tube (CRT) porter’’, 261.39(a)(5)(i)(F), and (a)(5)(x) and (xi), and 261.41(a) and (b), as Rule. (Checklist amended September 25, 2015, effective on October 18, 2015. 232). 1 More stringent provisions.
VIII. Where are the revised State rules X. Who handles permits after the XIII. Administrative Requirements different from the Federal rules? authorization takes effect? The Office of Management and Budget The State of Arkansas regulations that The State of Arkansas will issue (OMB) has exempted this action from permits for all the provisions for which are more stringent than the Federal the requirements of Executive Order it is authorized and will administer the regulations are documented in the above 12866 (58 FR 51735, October 4, 1993), permits it issues. The EPA will continue and therefore this action is not subject chart. For enforcement purposes, the to administer any RCRA hazardous to review by OMB. The reference to EPA does not enforce broader in scope waste permits or portions of permits Executive Order 13563 (73 FR 3821, provisions. which we issued prior to the effective January 21, 2011) is also exempt from date of this authorization. EPA will not IX. Electronic manifest provisions that review under Executive orders 12866 issue any more new permits or new are non-delegable to States. (56 FR 51735, October 4, 1993). This portions of permits for the provisions action authorizes State requirements for The Federal Hazardous Waste listed in the chart in this document after the effective date of this authorization. the purpose of RCRA 3006 and imposes Electronic Manifest Rule (79 FR 7518; no additional requirements beyond February 7, 2014) contains several The EPA will continue to implement and issue permits for HSWA those imposed by State law. provisions which are non-delegable to Accordingly, I certify that this action States. Specifically, States cannot requirements for which ADEQ is not yet authorized. will not have a significant economic receive authorization to establish a impact on a substantial number of small Federal user under the electronic XI. How does this action affect Indian entities under the Regulatory Flexibility manifest requirements, nor can States Country (18 U.S.C. 1151) in Arkansas? Act (5 U.S.C. 601 et seq.). Because this receive authorization for the electronic The State of Arkansas Hazardous action authorizes preexisting signature requirements, resulting in the Program is not being authorized to requirements under State law and does States’ inability to implement the operate in Indian Country. not impose any additional enforceable provisions listed below. However, EPA duty beyond that required by State law, strongly recommends States adopt these XII. What is codification and is the EPA it does not contain any unfunded provisions while retaining the EPA rule codifying Arkansas’ hazardous waste mandate or significantly or uniquely language unchanged; Arkansas has program as authorized in this rule? affect small governments, as described adopted the Electronic Manifest Rule Codification is the process of placing in the Unfunded Mandates Reform Act using this approach. The non-delegable the State’s statutes and regulations that of 1995 (Pub. L. 104–4). For the same provisions and provisions where States comprise the State’s authorized reason, this action also does not must retain references to ‘‘EPA’’ are: 40 hazardous waste program into the CFR. significantly or uniquely affect the CFR 260.10 ‘‘electronic manifest’’, We do this by referencing the communities of Tribal governments, as ‘‘electronic manifest system’’, ‘‘use of authorized State rules in 40 CFR part specified by Executive Order 13175 (65 the electronic manifest system’’; 272. We reserve the amendment of 40 FR 67249, November 9, 2000). This 262.24(g); 262.25; 263.20(a)(2); CFR part 272, subpart E for this action will not have substantial direct authorization of Arkansas’ program effects on the States, on the relationship 262.20(a)(3)(ii); 263.20(a)(8); changes until a later date. In this between the national government and 264.71(a)(2)(v); 264.71(j); authorization application the EPA is not the States, or on the distribution of 265.71(a)(2)(v); and 265.71(j). codifying the rules documented in this power and responsibilities among the Federal Register document. various levels of government, as
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specified in Executive Order 13132 (64 Because this rule authorizes pre-existing ACTION: Final rule; correction and FR 43255, August 10, 1999), because it State rules which are at least equivalent correcting amendment. merely authorizes State requirements as to, and no less stringent than existing part of the State RCRA hazardous waste federal requirements, and imposes no SUMMARY: This document corrects program without altering the additional requirements beyond those technical and typographical errors that relationship or the distribution of power imposed by State law, and there are no appeared in the final rule published in and responsibilities established by anticipated significant adverse human the March 8, 2016 Federal Register (81 RCRA. This action also is not subject to health or environmental effects, the rule FR 12204 through 12352) entitled Executive Order 13045 (62 FR 19885, is not subject to Executive Order 12898. ‘‘Patient Protection and Affordable Care April 23, 1997), because it is not The Congressional Review Act, 5 Act; HHS Notice of Benefit and Payment economically significant and it does not U.S.C. 801 et seq., as added by the Small Parameters for 2017.’’ The effective date make decisions based on environmental Business Regulatory Enforcement for the rule was May 9, 2016. health or safety risks. This rule is not Fairness Act of 1996, generally provides DATES: subject to Executive Order 13211, that before a rule may take effect, the Effective Date: This correcting ‘‘Actions Concerning Regulations That agency promulgating the rule must document is effective August 11, 2016. Significantly Affect Energy Supply, submit a rule report, which includes a Applicability Date: The corrections Distribution, or Use’’ (66 FR 28355, May copy of the rule, to each House of the indicated in this document are 22, 2001) because it is not a significant Congress and to the Comptroller General applicable beginning May 9, 2016. regulatory action under Executive Order of the United States. The EPA will FOR FURTHER INFORMATION CONTACT: 12866. submit a report containing this Allison Yadsko (410) 786–1740. Under RCRA 3006(b), the EPA grants document and other required SUPPLEMENTARY INFORMATION: information to the U.S. Senate, the U.S. a State’s application for authorization as I. Background long as the State meets the criteria House of Representatives, and the required by RCRA. It would thus be Comptroller General of the United In FR Doc. 2016–04439 (81 FR 12204), inconsistent with applicable law for the States prior to publication in the the final rule entitled ‘‘Patient EPA, when it reviews a State Federal Register. A major rule cannot Protection and Affordable Care Act; authorization application; to require the take effect until 60 days after it is HHS Notice of Benefit and Payment use of any particular voluntary published in the Federal Register. This Parameters for 2017’’ (2017 Payment consensus standard in place of another action is not a ‘‘major rule’’ as defined Notice), there were technical errors that standard that otherwise satisfies the by 5 U.S.C. 804(2). This action will be are identified and corrected in section requirements of RCRA. Thus, the effective October 11, 2016. IV, the Correction of Errors. These corrections are applicable as of May 9, requirements of section 12(d) of the List of Subjects in 40 CFR Part 271 National Technology Transfer and 2016. Environmental protection, Advancement Act of 1995 (15 U.S.C. II. Summary of Errors 272 note) do not apply. As required by Administrative practice and procedure, section 3 of Executive Order 12988 (61 Confidential business information, A. Summary of Errors in the Preamble Hazardous waste, Hazardous waste FR 4729, February 7, 1996), in issuing On page 12296, the phrase transportation, Indian lands, this rule, the EPA has taken the ‘‘paragraphs (c)(1)(ii) and (c)(2)(iii) of Intergovernmental relations, Penalties, necessary steps to eliminate drafting this paragraph’’ should include a Reporting and recordkeeping errors and ambiguity, minimize reference to ‘‘(c)(3)(ii).’’ This correction requirements. potential litigation, and provide a clear clarifies how the provisions are at least legal standard for affected conduct. The Authority: This action is issued under the as stringent as the requirements of EPA has complied with Executive Order authority of sections 2002(a), 3006, and paragraph (c) and aligns with the next 12630 (53 FR 8859, March 15, 1988) by 7004(b) of the Solid Waste Disposal Act as paragraph that clarifies we do not examining the takings implications of amended 42 U.S.C. 6912(a), 6926, 6974(b). believe that applying timeframes less the rule in accordance with the Dated: July 14, 2016. stringent than those in the current ‘‘Attorney General’s Supplemental Ron Curry, § 156.122(c) would benefit enrollees. Guidelines for the Evaluation of Risk Regional Administrator, Region 6. On pages 12310 and 12311 the word and Avoidance of Unanticipated [FR Doc. 2016–18433 Filed 8–10–16; 8:45 am] ‘‘consecutive’’ should have been Takings’’ issued under the Executive BILLING CODE 6560–50–P attached to the description of the grace Order. This rule does not impose an period for enrollees receiving advance information collection burden under the payments of the premium tax credit provisions of the Paperwork Reduction (APTC), for the description to be DEPARTMENT OF HEALTH AND Act of 1995 (44 U.S.C. 3501 et seq.). consistent with the regulation text that HUMAN SERVICES Executive Order 12898 (59 FR 7629, was promulgated prior to the Patient Feb. 16, 1994) establishes federal 45 CFR Parts 144, 147, 153, 154, 155, Protection and Affordable Care Act; executive policy on environmental 156, and 158 HHS Notice of Benefit and Payment justice. Its main provision directs Parameters for 2017; Final Rule. This federal agencies, to the greatest extent [CMS–9937–F2] correction accurately reflects the length practicable and permitted by law, to of the grace period for enrollees RIN–0938–AS57 make environmental justice part of their receiving APTC as being 3 consecutive mission by identifying and addressing, Patient Protection and Affordable Care months. as appropriate, disproportionately high Act; HHS Notice of Benefit and B. Summary of Errors in Regulation Text and adverse human health or Payment Parameters for 2017; environmental effects of their programs, Corrections On page 12349, in policies, and activities on minority § 156.122(c)(4)(i)(D), we inadvertently populations and low-income AGENCY: Centers for Medicare & omitted a cross-reference to paragraph populations in the United States. Medicaid Services (CMS), HHS. (c)(3)(ii).
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On page 12350, in § 156.270(d) would be unnecessary, because we are month grace period’’ is corrected to read introductory text, we inadvertently not altering the payment methodologies ‘‘3 consecutive month grace period’’. omitted the word ‘‘consecutive’’ from or policies, but rather, we are simply h. In the third column, in the first the language describing the length of the correcting the Federal Register partial paragraph, line 12, the phrase ‘‘3- grace period for enrollees receiving document to reflect the policies that we month grace period’’ is corrected to read APTC. previously proposed, received comment ‘‘3 consecutive month grace period’’. on, and subsequently finalized. This III. Waiver of Proposed Rulemaking List of Subjects in 45 CFR Part 156 and Delay in Effective Date correcting document is intended solely to ensure that the 2017 Payment Notice Under 5 U.S.C. 553(b) of the accurately reflects these policies. For Administrative practice and Administrative Procedure Act (APA), these reasons, we believe there is good procedure, Advertising, American the agency is required to publish a cause to waive the requirements for Indian/Alaska Natives, Conflict of notice of the proposed rule in the notice and comment and delay in interest, Consumer protection, Cost- Federal Register before the provisions effective date. sharing reductions, Essential Health of a rule take effect. Section 553(d) of Benefits, Prescription drug benefit, the APA mandates a 30-day delay in IV. Correction of Errors in the Preamble Grant programs-health, Grants effective date after issuance or In FR Doc. 2016–04439 (81 FR 12204), administration, Health care, Health publication of a rule. Sections published March 8, 2016, make the insurance, Health maintenance 553(b)(3)(B) and 553(d)(3) of the APA following corrections: organization (HMO), Health records, provide for exceptions from the APA 1. On page 12296, in the second Hospitals, Individuals with disabilities, notice and comment, and delay in column, in the first full paragraph, lines Loan programs-health, Medicaid, effective date requirements. Section 18 and 19, the phrase ‘‘paragraphs Organization and functions 553(b)(3)(B) of the APA authorizes an (c)(1)(ii) and (c)(2)(iii) of this paragraph’’ (Government agencies), Public agency to dispense with normal notice is corrected to read ‘‘paragraphs assistance programs, Reporting and and comment rulemaking procedures (c)(1)(ii), (c)(2)(iii), and (c)(3)(ii) of this recordkeeping requirements, State and for good cause if the agency makes a section’’. local governments, Sunshine Act, finding that the notice and comment 2. On page 12310, Technical assistance, Women, Youth. process is impracticable, unnecessary, a. In the third column, second full Accordingly, the Department of or contrary to the public interest; and paragraph, line 3, the phrase ‘‘3-month Health and Human Services corrects 45 includes a statement of the finding and grace period’’ is corrected to read ‘‘3 CFR part 156 by making the following the reasons for it in the notice. In consecutive month grace period’’. correcting amendments: addition, section 553(d)(3) of the APA b. In the third column, second full allows the agency to avoid the 30-day paragraph, line 29, the phrase ‘‘3-month PART 156—HEALTH INSURANCE delay in effective date where such delay grace period’’ is corrected to read ‘‘3 ISSUER STANDARDS UNDER THE is contrary to the public interest and the consecutive month grace period’’. AFFORDABLE CARE ACT, INCLUDING agency includes in the rule a statement c. In the third column, second full STANDARDS RELATED TO of the finding and the reasons for it. EXCHANGES In our view, this correcting document paragraph, line 38, the phrase ‘‘grace does not constitute a rulemaking that period of 3 months’’ is corrected to read ■ 1. The authority citation for part 156 would be subject to these requirements. ‘‘grace period of 3 consecutive months’’. continues to read as follows: This document merely corrects 3. On page 12311, typographical and technical errors in a. In the first column, in the first full Authority: Title I of the Affordable Care the 2017 Payment Notice. The paragraph, line 7, the phrase ‘‘3-month Act, sections 1301–1304, 1311–1313, 1321– corrections contained in this document grace period’’ is corrected to read ‘‘3 1322, 1324, 1334, 1342–1343, 1401–1402, are consistent with, and do not make consecutive month grace period’’. Pub. L. 111–148, 124 Stat. 119 (42 U.S.C. substantive changes to, the policies that b. In the first column, in the first full 18021–18024, 18031–18032, 18041–18042, were adopted subject to notice and paragraph, line 17, the phrase ‘‘3-month 18044, 18054, 18061, 18063, 18071, 18082, 26 U.S.C. 36B, and 31 U.S.C. 9701). comment procedures in the 2017 grace period’’ is corrected to read ‘‘3 Payment Notice. As a result, the consecutive month grace period’’. § 156.122 [Amended] corrections made through this correcting c. In the first column, in the first full document are intended to ensure that paragraph, lines 24 through 25, the ■ 2. Section 156.122(c)(4)(i)(D) is the 2017 Payment Notice accurately phrase ‘‘3-month grace period’’ is amended by removing the phrase reflects the policies adopted in that rule. corrected to read ‘‘3 consecutive month ‘‘paragraphs (c)(1)(ii) and (c)(2)(iii) of Even if this were a rulemaking to grace period’’. this section’’ and adding in its place the which the notice and comment and d. In the second column, in the first phrase ‘‘paragraphs (c)(1)(ii), (c)(2)(iii), delayed effective date requirements full paragraph, line 8, the phrase ‘‘3- and (c)(3)(ii) of this section’’. applied, we find that there is good cause month grace period’’ is corrected to read to waive such requirements. ‘‘3 consecutive month grace period’’. § 156.270 [Amended] Undertaking further notice and e. In the second column, in the ■ 3. Section 156.270 is amended by comment procedures to incorporate the second full paragraph, line 14, the amending paragraph (d) to remove the corrections in this document into the phrase ‘‘3-month grace period’’ is term ‘‘3 months’’ and add in its place 2017 Payment Notice or delaying the corrected to read ‘‘3 consecutive month the phrase ‘‘3 consecutive months’’. effective date of the corrections would grace period’’. be contrary to the public interest f. In the second column, in the third Dated: August 5, 2016. because it is in the public interest to full paragraph, line 13, the phrase ‘‘3- Madhura Valverde, ensure that the 2017 Payment Notice month grace period’’ is corrected to read Executive Secretary to the Department, accurately reflects our final policies as ‘‘3 consecutive month grace period’’. Department of Health and Human Services. soon as possible following the date they g. In the second column, in the third [FR Doc. 2016–19108 Filed 8–10–16; 8:45 am] take effect. Further, such procedures full paragraph, line 22, the phrase ‘‘3- BILLING CODE 4120–01–P
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DENALI COMMISSION federal agencies to develop and, as with cooperating agencies and other needed, revise implementing federal agencies. 45 CFR Chapter IX procedures consistent with the CEQ Section 900.108 Public Involvement regulations. The Denali Commission is National Environmental Policy Act issuing the following NEPA Language was added requiring hard Implementing Procedures and implementing procedures that comply copies of NEPA documents to be Categorical Exclusions with NEPA and supplement the CEQ provided to local governmental and/or tribal entities in the effected AGENCY: Denali Commission. regulations. The remaining sections of communities. ACTION: Notice of final NEPA SUPPLEMENTARY INFORMATION will implementation rule. provide background. Following the Subpart C—Environmental SUPPLEMENTARY INFORMATION is the text Assessments SUMMARY: This document contains the of the final procedures. final Denali Commission policies and Section 900.302 General Background procedures for compliance with the Considerations in Preparing National Environmental Policy Act of In accordance with CEQ regulations Environmental Assessments 1969 (NEPA), as amended. This action (40 CFR 1507.3), the Commission The Commission added language is necessary to implement these consulted with the CEQ prior to clarifying the process for adoption of procedures and make them available to publication of the proposed rule. On other environmental documents and the public on the Commission’s internet August 10, 2004, the Commission incorporation by reference of other site. published a proposed rule in the documents into an EA. Paragraphs (c) DATES: Effective September 12, 2016. Federal Register (69 FR 48435) and and (d) were eliminated because they FOR FURTHER INFORMATION CONTACT: Mr. invited public comment. The were redundant and paragraph (e) was John Whittington, 907–271–1414. Commission considered the comments renumbered as paragraph (c). received on the 2004 proposed rule. On SUPPLEMENTARY INFORMATION: Section 900.304 Actions Resulting March 6, 2006, however, the From Assessment General Commission published a document in Paragraph (c) (Mitigated FONSI) was Established by Congress in 1998, the the Federal Register withdrawing the added to clarify the distinction between Denali Commission (Commission) is an 2004 proposed rule (71 FR 13563). At a mitigated FONSI and accepting a innovative federal-state partnership the time, the Commission intended to proposal with modifications (paragraph designed to provide critical utilities, adopt guidelines for implementing (b)). infrastructure, and economic support NEPA instead of promulgating a final throughout Alaska. With the creation of rule. Since that time, however, the Subpart D—Environmental Impact the Commission, Congress Commission concluded that the Statements acknowledged the need for increased approach outlined in the 2004 proposed rule was appropriate and issued a Section 900.405 Proposals Normally inter-agency cooperation and focus on Requiring an EIS Alaska’s remote communities. Since its revised version of the proposed rule for first meeting in April 1999, the review and comment in the Federal The Commission identified large scale Commission is credited with Register on December 21, 2015 (80 FR infrastructure construction projects such constructing numerous cost-shared 79292) that reflected the Commission’s as the relocation of an entire community infrastructure projects across the State consideration of and responses to public as projects normally requiring an EIS. comments received on the 2004 that exemplify effective and efficient List of Subjects in 45 CFR Part 900 partnership between federal and state proposed rule. Administrative practice and agencies, and the private sector. The final rule published today reflects The National Environmental Policy the Commission’s consideration of and procedure, Environmental impact Act (NEPA) and implementing responses to the public comments statements, Environmental protection. regulations promulgated by the Council received on the revised proposed rule. For the reasons stated in the on Environmental Quality (CEQ) (40 These procedures are final and will be preamble, the Denali Commission is CFR parts 1500–1508) established a made available to the public in the Code adding chapter IX, consisting of parts broad national policy to use all of Federal Regulations (CFR) and on the 900 through 999, to title 45 of the CFR practicable means and measures, Commission’s internet site at https:// to read as follows: including financial and technical www.denali.gov. CHAPTER IX—Denali Commission assistance, in a manner calculated to Comments and Responses foster and promote the general welfare, PART 900—NATIONAL to create and maintain conditions under The Commission received, reviewed ENVIRONMENTAL POLICY ACT which man and nature can exist in and considered one comment on the IMPLEMENTING PROCEDURES productive harmony and fulfill the proposed 2015 rule. The comment, social, economic, and other however, was not substantive and no PARTS 901–999 [RESERVED] requirements of present and future changes were made in response to the generations of Americans. The CEQ comment. Also considered were any PART 900—NATIONAL regulations implementing the substantive changes resulting from ENVIRONMENTAL POLICY ACT procedural provisions of NEPA are consultation with the CEQ. IMPLEMENTING PROCEDURES designed to ensure that this national Subpart A—General Subpart A—General policy, environmental considerations, and associated public concerns are Section 900.106 Denali Commission Sec. Responsibility 900.101 Purpose. given careful attention and appropriate 900.102 Environmental policy. weight in all decisions of the federal Paragraph (e) was added to clarify that 900.103 Terms and abbreviations. government. Sections 102(2) of NEPA the Approving Official will be 900.104 Federal and intergovernmental and 40 CFR 1505.1 and 1507.3 require responsible for coordinating comments relationships.
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900.105 Applicant responsibility. comply with all appropriate to fulfill the responsibilities defined in 900.106 Denali Commission responsibility. Commission requirements; § 900.106, including overseeing 900.107 Role of lead and cooperating (c) Integrate NEPA requirements and development of and approval of the agencies. other planning and environmental NEPA document. 900.108 Public involvement. review procedures required by law or (4) Commission proposal (or Subpart B—Environmental Review Commission practice so that all such proposal). A proposal, as defined at 40 Procedures procedures run concurrently rather than CFR 1508.23, is a Commission proposal 900.201 Environmental review process. consecutively; whether initiated by the Commission, 900.202 Emergency actions. (d) Encourage and facilitate public another federal agency, or an applicant. 900.203 Determination of federal actions. involvement in Commission decisions (5) Federal Co-Chair. One of the seven 900.204 Categorical exclusions. that affect the quality of the human members of the Commission, appointed 900.205 Environmental assessment. environment; 900.206 Environmental impact statement. by the Secretary of Commerce, as (e) Use the NEPA process to identify defined in the Denali Commission Act 900.207 Programmatic environmental and assess reasonable alternatives to reviews. of 1998, 42 U.S.C. 3121, Public Law proposed Commission actions to avoid 105–277. Subpart C—Environmental Assessments or minimize adverse effects upon the (b) The following abbreviations are 900.301 Content. quality of the human environment; used throughout this part: 900.302 General considerations in (f) Use all practicable means (1) CATEX—Categorical exclusions; preparing environmental assessments. consistent with NEPA and other (2) CEQ—Council on Environmental 900.303 Public involvement. essential considerations of national Quality; 900.304 Actions resulting from assessment. policy to restore or enhance the quality (3) EA—Environmental assessment; 900.305 Findings of no significant impact. of the human environment and avoid, (4) EIS—Environmental impact 900.306 Proposals normally requiring an minimize, or otherwise mitigate any EA. statement; possible adverse effects of the Subpart D—Environmental Impact Commission’s actions upon the quality (5) FONSI—Finding of no significant Statements of the human environment; and impact; 900.401 Notice of intent and scoping. (g) Consider and give important (6) NEPA—National Environmental 900.402 Preparation and filing of draft and weight to factors including customary Policy Act of 1969, as amended; final EISs. and traditional uses of resources, (7) NOI—Notice of intent; and 900.403 Supplemental EIS. recreation, and the objectives of Federal, (8) ROD—Record of decision. 900.404 Adoption. regional, State, local and tribal land use § 900.104 Federal and intergovernmental 900.405 Proposals normally requiring an plans, policies, and controls for the area EIS. relationships. concerned in developing proposals and Appendix A to Part 900—Categorical The Denali Commission was created making decisions in order to achieve a Exclusions to deliver the services of the federal proper balance between the government in the most cost-effective Authority: 42 U.S.C. 3121, 4321; 40 CFR development and utilization of natural, parts 1500 through1508. manner practicable. In order to reduce cultural and human resources and the administrative and overhead costs, the protection and enhancement of Subpart A—General Commission partners with federal, state environmental quality (see NEPA and local agencies and Alaska Native § 900.101 Purpose. section 101 and 40 CFR 1508.14). In villages and commonly depends on This regulation prescribes the policies particular the Commission will consider these governmental agencies for project and procedures of the Denali potential effects on subsistence management. Consequently, the Commission (Commission) for activities, which are critically important Commission generally relies on the implementing the National to the daily existence of Alaska Native expertise and processes already in use Environmental Policy Act of 1969 villages. by partnering agencies to help prepare (NEPA) as amended (42 U.S.C. 4321– Commission NEPA analyses and 4347) and the Council on § 900.103 Terms and abbreviations. documents. Environmental Quality (CEQ) (a) For the purposes of this part, the (a) With federal partners, the Regulations for Implementing the definitions in the CEQ Regulations, 40 Commission will work as either a joint Procedural Provisions of NEPA (40 CFR CFR parts 1500 through 1508, are lead agency (40 CFR 1501.5 and parts 1500 through 1508). This adopted and supplemented as set out in 1508.16) or cooperating agency (40 CFR regulation also addresses other related paragraphs (a)(1) through (5) of this 1501.6 and 1508.5). The Commission federal environmental laws, statutes, section. In the event of a conflict the may invite other Federal agencies to regulations, and Executive Orders that CEQ Regulations apply. serve as the lead agency, a joint lead apply to Commission actions. This part (1) Action. Action and Federal action agency, or as a cooperating agency. adopts, supplements, and is to be used as defined in 40 CFR 1508.18, include (b) Consistent with 40 CFR 1508.5, the in conjunction with, 40 CFR parts 1500 projects, programs, plans, or policies, Commission will typically invite Alaska through 1508, consistent with 40 CFR subject to the Commission’s control and Native villages and state and local 1507.3. responsibility. (2) Applicant. The federal, state, local government partners to serve as § 900.102 Environmental policy. government or non-governmental cooperating agencies. It is the policy of the Commission to: partner or organization applying to the (c) Requests for the Commission to (a) Comply with the procedures and Commission for financial assistance or serve as a lead agency (40 CFR policies of NEPA and other related other approval. An applicant may also 1501.5(d)), for CEQ to determine which environmental laws, regulations, and be a partner organization in receipt of Federal agency shall be the lead agency orders applicable to Commission award funds. (40 CFR 1501.5(e)), or for the actions; (3) Approving Official. The Denali Commission to serve as a cooperating (b) Provide guidance to applicants Commission staff member designated by agency (40 CFR 1501.6(a)(1)) shall be responsible for ensuring that proposals the Federal Co-Chair or his/her designee mailed to the Commission office.
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§ 900.105 Applicant responsibility. § 900.107 Role of lead and cooperating as Denali Commission assistance is (a) Applicants shall work under agencies. projected. Environmental issues shall be Commission direction provided by the In accordance with § 900.104, the identified and considered early in the Approving Official, and assist the Commission may defer the lead agency proposal planning process. A Commission in fulfilling its NEPA role to other federal agencies in systematic, interdisciplinary approach obligations by preparing NEPA analyses accordance with 40 CFR 1501.5, and the that includes community involvement and documents that comply with the Commission will then exercise its role and intergovernmental coordination to provisions of NEPA (42 U.S.C. 4321– as either a joint lead or a cooperating expand the potential sources of 4347), the CEQ Regulations (40 CFR agency in accordance with 40 CFR information and identify areas of parts 1500 through 1508), and the 1501.6. concern will be used. Environmental permits and other forms of approval, requirements set forth in this part. § 900.108 Public involvement. (b) Applicants shall follow concurrence, or consultation may be Commission direction when they assist (a) When public involvement is required. The planning process shall the Commission with the following required pursuant to subparts C and D include permitting and other review responsibilities, among others: of this part, interested persons and the processes to ensure that necessary (1) Prepare and disseminate affected public shall be provided notice information will be collected and applicable environmental of the availability of environmental provided to permitting and reviewing documentation concurrent with a documents, NEPA-related hearings, and agencies in a timely manner. public meetings. Such notice will be proposal’s engineering, planning, and § 900.202 Emergency actions. design; made on the Commission Web site and other means such that the community is (a) General. Emergency circumstances (2) Create and distribute public notified (e.g., community postings, may require immediate actions that notices; newspaper, radio or television). preclude following standard NEPA (3) Coordinate public hearings and (b) Applicants shall assist the processes. The Council shall limit meetings as required; Commission in providing the alternative arrangements to those (4) Submit all environmental opportunity for public participation and actions that are necessary to control the documents created pursuant to this part considering the public comments on the immediate impacts of the emergency. In to the Commission for review and proposal as described in subparts C and the event of emergency circumstances, approval before public distribution; D of this part. the Approving Official should (5) Participate in all Commission- (c) Interested persons can obtain coordinate with the Federal Co-Chair as conducted hearings or meetings; information or status reports on EISs soon as practicable. Immediate (6) Consult with the Commission and other elements of the NEPA process emergency actions necessary to protect prior to obtaining the services of an from the Commission’s office at 510 L the lives and safety of the public or environmental consultant; in the case Street, Suite 410; Anchorage, Alaska prevent adverse impacts to ecological that an EIS is required, the consultant or 99501; or on the Commission Web site resources and functions should never be contractor will be selected by the at http://www.denali.gov. Telephone: delayed in order to comply with these Commission; and (907) 271–1414. The Commission will NEPA procedures. Alternative (7) Implement mitigation measures provide hard copies of NEPA arrangements for NEPA compliance are included as voluntary commitments by documents to governmental and/or permitted for emergency actions the applicant or as requirements of the tribal entities in the affected pursuant to paragraphs (b) through (d) applicant in environmental documents. communities. of this section. (d) In the interests of national security (b) Categorical exclusion (CATEX). § 900.106 Denali Commission When emergency circumstances make it responsibility. or the public health, safety, or welfare, the Commission may reduce any time necessary to determine whether an (a) The Federal Co-Chair or his/her periods that the Commission has extraordinary circumstance would designee shall designate an Approving established and that are not required by preclude the use of a CATEX, the Official for each Commission proposal, the CEQ Regulations. The Commission Approving Official shall make the and shall provide environmental shall publish a notice on the Web site determination as soon as practicable. If guidance to the Approving Official; at http://www.denali.gov and notify an extraordinary circumstance exists, (b) The Approving Official shall interested parties (see 40 CFR 1506.6) the Approving Official shall comply provide direction and guidance to the specifying the revised time periods for with paragraphs (c) and (d) of this applicant as well as identification and the proposed action and the rationale section, as applicable. development of required analyses and for the reduction. (c) Environmental assessment (EA). documentation; When emergency circumstances make it (c) The Approving Official shall make Subpart B—Environmental Review necessary to take an action that requires an independent evaluation of the Procedures an EA before the EA can be completed, environmental issues, take the Approving Official will consult with responsibility for the scope and content § 900.201 Environmental review process. the Federal Co-Chair to develop of the environmental document (EA or (a) General. The environmental alternative arrangements to meet the EIS), and make the environmental review process is the investigation of requirements of these NEPA finding; potential environmental impacts to implementing procedures and CEQ (d) The Approving Official shall determine the environmental process to Regulations pertaining to EAs. ensure mitigation measures included in be followed and to assist in the Alternative arrangements should focus environmental documents are preparation of the environmental on minimizing adverse environmental implemented; and document. impacts of the proposed action and the (e) The Approving official shall be (b) Early coordination. Applicants emergency. To the maximum extent responsible for coordinating will contact the Commission and work practicable, these alternative communications with cooperating with the Approving Official to begin the arrangements should include the agencies and other federal agencies. environmental review process as soon content, interagency coordination, and
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public notification and involvement that absence of extraordinary circumstances (6) Have a greater scope or size than would normally be undertaken for an or sensitive resources, neither an EA nor is normal for the category of action; EA for the action at issue and cannot an EIS is required. Actions that meet the (7) Have the potential to degrade alter the requirements of the CEQ conditions in paragraph (b) of this already existing poor environmental Regulations at 40 CFR 1508.9(a)(1) and section and are listed in section A of conditions or to initiate a degrading (b). The Federal Co-Chair may grant an appendix A of this part can be influence, activity, or effect in areas not alternative arrangement. Any alternative categorically excluded from further already significantly modified from arrangement shall be documented. The analysis and documentation in an EA or their natural condition; Federal Co-Chair will inform CEQ of the EIS. Actions that meet the screening (8) Have a disproportionately high alternative arrangements at the earliest conditions in paragraph (b) of this and adverse effect on low income or opportunity. section and are listed in section B of minority populations (see Executive (d) Environmental Impact Statement appendix A require satisfactory Order 12898); (EIS). Where emergency circumstances completion of a Denali Commission (9) Limit access to and ceremonial use make it necessary to take actions with CATEX checklist in order to be of Indian sacred sites on federal lands significant environmental impacts categorically excluded from further by Indian religious practitioners or without observing other provisions of analysis and documentation in an EA or adversely affect the physical integrity of these NEPA implementing procedures EIS. such sacred sites (see Executive Order and the CEQ Regulations (see 40 CFR (b) Conditions. The following three 13007); 1506.11) the Federal Co-Chair may conditions must be met for an action to (10) Threaten a violation of a federal, consult with CEQ about alternative be categorically excluded from further tribal, state or local law or requirement arrangements for implementation of analysis in an EA or EIS. imposed for the protection of the NEPA. In these situations, the (1) The action has not been segmented environment; Commission may reduce processing (too narrowly defined or broken down (11) Have a reasonable likelihood of times or, if the emergency situation into small parts in order minimize its significant impact to subsistence warrants, abbreviate its preparation and potential effects and avoid a higher level activities; or processing of EISs. Any request for of NEPA review) and its scope includes (12) Have a reasonable likelihood of alternative arrangements must be the consideration of connected actions significant impacts on environmentally submitted by the Federal Co-Chair to and, when evaluating extraordinary sensitive resources, such as: CEQ and notice of a potential request circumstances, cumulative impacts. (i) Properties listed, or eligible for should be provided to CEQ at the (2) No extraordinary circumstances listing, in the National Register of earliest opportunity. For projects described in paragraph (c) of this Historic Places; undertaken by an applicant, the section exist, unless resolved through (ii) Species listed, or proposed to be Approving Official will inform the other regulatory means. listed, on the List of Endangered or Federal Co-Chair about the emergency. (3) One categorical exclusion Threatened Species, or their habitat; or The Federal Co-Chair will consult CEQ described in either section of appendix (iii) Natural resources and unique requesting the alternative arrangements A of this part encompasses the proposed geographic characteristics such as for complying with NEPA. action. historic or cultural resources; park, (c) Extraordinary circumstances. Any recreation or refuge lands; wilderness § 900.203 Determination of federal actions. action that normally would be classified areas; wild or scenic rivers; national (a) The Commission shall determine as a CATEX but could involve natural landmarks; sole or principal whether any Commission proposal: extraordinary circumstances will drinking water aquifers; prime (1) Is categorically excluded from require appropriate environmental farmlands; special aquatic sites (defined preparation of either an EA or an EIS; review documented in a Denali under Section 404 of the Clean Water (2) Requires preparation of an EA; or Commission CATEX checklist to Act); floodplains; national monuments; (3) Requires preparation of an EIS. determine if the CATEX classification is and other ecologically significant or (b) Notwithstanding any other proper or if an EA or EIS should be critical areas. provision of this part, the Commission prepared. Extraordinary circumstances § 900.205 Environmental assessment. may prepare a NEPA document to assist to be considered include those likely to: any Commission action at any time in (1) Have a reasonable likelihood of (a) An EA is required for all order to further the purposes of NEPA. significant impacts on public health, proposals, except those exempt from This NEPA document may be done to public safety, or the environment; NEPA or categorically excluded under analyze the consequences of ongoing (2) Have effects on the environment this part, and those requiring or Commission activities, to support that are likely to be highly controversial determined to require an EIS. EAs Commission planning, to assess the or involve unresolved conflicts provide sufficient evidence and analysis need for mitigation, to disclose fully the concerning alternative uses of available to determine whether to prepare an EIS potential environmental consequences resources; or a finding of no significant impact of Commission actions, or for any other (3) Have possible effects on the (FONSI). reason. Documents prepared under this human environment that are highly (b) In addition, an EA may be paragraph shall be prepared in the same uncertain, involve unique or unknown prepared on any action at any time in manner as Commission documents risks, or are scientifically controversial; order to assist in planning and decision prepared under this part. (4) Establish a precedent for future making, to aid in the Commission’s action or represent a decision in compliance with NEPA when no EIS is § 900.204 Categorical exclusions. principle about future actions with necessary, or to facilitate EIS (a) General. A categorical exclusion potentially significant environmental preparation. (CATEX) is defined in 40 CFR 1508.4 as effects; (c) EAs shall be prepared in a category of actions which do not (5) Relate to other actions with accordance with subpart C of this part individually or cumulatively have a individually insignificant but and shall contain analyses to support significant effect on the human cumulatively significant environmental conclusions regarding environmental environment and, for which in the effects; impacts. If a FONSI is proposed, it shall
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be prepared in accordance with limited to the minimum needed to environmental impacts, the proposal § 900.305. determine the significance of potential may be modified to eliminate such environmental effects. impacts. Proposals so modified may be § 900.206 Environmental impact accepted by the Commission if the statement. § 900.302 General considerations in preparing environmental assessments. proposed changes are evaluated in an An EIS is required when the project EA and a FONSI is prepared in is determined to have a potentially (a) Adoption of an EA. The accordance with § 900.305. significant impact on the human Commission may adopt an EA prepared (c) Mitigated FONSI. If mitigation is environment. EISs shall be prepared in for a proposal before the Commission by required to reduce the impacts below accordance with subpart D of this part. another agency or an applicant when significant the FONSI shall identify the the EA, or a portion thereof, addresses mitigation and describe applicable § 900.207 Programmatic environmental the proposed Commission action and reviews. monitoring and enforcement measures meets the standards for an adequate (a) A programmatic NEPA review is analysis under this part and relevant intended to ensure the implementation used to assess the environmental provisions of 40 CFR parts 1500 through of the mitigation measures. impacts of a proposed action that is 1508, provided that the Commission (d) Prepare an EIS. The Commission broad in reach, such as a program, plan, makes its own evaluation of the shall require that the proposal be or policy (see 40 CFR 1502.4). Analyses environmental issues and takes evaluated in an EIS, prepared in of subsequent actions that fall within responsibility for the scope and content accordance with subpart D to this part, the program, plan, or policy may be of the EA in accordance with 40 CFR if the EA indicates significant tiered to the programmatic review, as 1506.5(b). environmental impacts that cannot be described in 40 CFR 1502.20 and (b) Incorporation by reference into the mitigated below a specified level of 1508.28. EA. Any document may be incorporated significance. (b) Programmatic NEPA reviews may by reference in accordance with 40 CFR (e) Rejected. The Commission may take the form of a programmatic EA or 1502.21 and used in preparing an EA in always elect to reject a proposal. a programmatic EIS. accordance with 40 CFR 1501.4(e) and (c) A programmatic EA shall meet all § 900.305 Findings of no significant 1506.5(a), provided that the impact. of the requirements for EAs in subpart Commission makes its own evaluation C of this part, including those for of the environmental issues and takes (a) Definition. Finding of no content and public involvement. In responsibility for the scope and content significant impact (FONSI) means a order to adopt a programmatic EA of the EA in accordance with 40 CFR document by the Commission briefly prepared by another agency that did not 1506.5(b). presenting the reasons why an action, provide the same public involvement not otherwise excluded as provided in opportunities as the Commission, the § 900.303 Public involvement. § 900.204, will not have a significant Commission shall provide notice of the (a) Commission approval is required impact on the human environment and availability of the programmatic EA and before an EA is made available to the for which an EIS will not be prepared. make it available for public comment public and the notice of availability is (b) Applicant responsibility. The consistent with § 900.303(b) and (c) published. applicant shall assist the Commission before adopting it. (b) The public shall be provided with preparing the EA. The Commission (d) A programmatic EIS shall meet all notice of the availability of EAs and remains responsible for compiling the of the requirements for EISs in subpart draft FONSIs in accordance with 40 CFR public hearing summary or minutes, D of this part and in 40 CFR parts 1500 1506.6 and § 900.108(a) by the where applicable; and copies of any through 1508. Approving Official. The Approving written comments received and Official is responsible for making the EA responses thereto. Subpart C—Environmental available for public inspection and will (c) Content. A FONSI shall include Assessments provide hard copies on request to the the EA or a summary of it and shall note affected units of Alaska Native/ § 900.301 Content. any other environmental documents American Indian tribal organizations (a) An EA shall include brief related to it (40 CFR 1501.7(a)(5)). If the and/or local government. assessment is included, the finding need discussions of the need for the proposal; (c) EAs and draft FONSIs will be of alternatives to the proposal as not repeat any of the discussion in the available for public comment for not assessment but may incorporate it by required by NEPA section 102(2)(E); and less than 15 calendar days but may be of the environmental impacts of the reference. published for a longer period of time as (d) Publication. The Commission shall proposal and alternatives. The EA shall determined by the Approving Official. also include a listing of agencies and make the final FONSI available to the (d) Final Commission action will be public on the Commission Web site. persons consulted in the preparation of taken after public comments received on (e) Special circumstances. The FONSI the EA. an EA and draft FONSI are reviewed notice of availability will be made (b) An EA may describe a broad range and considered. of alternatives and proposed mitigation available for public review (including measures to facilitate planning and § 900.304 Actions resulting from State and areawide clearinghouses) for decisionmaking. assessment. 30 days before the Commission makes (c) The EA should also document (a) Accepted without modification. its final determination whether to compliance, to the extent possible, with The Commission may accept a proposal prepare an environmental impact all applicable environmental laws and without modifications if the EA statement and before the action may Executive Orders, or provide reasonable indicates that the proposal does not begin (40 CFR 1501.4(e)(2)) where: assurance that those requirements can have significant environmental impacts (1) The proposed action is, or is be met. and a FONSI is prepared in accordance closely similar to, one which normally (d) The EA should be a concise public with § 900.305. requires the preparation of an document. The level of detail and depth (b) Accepted with modification. If an environmental impact statement under of impact analysis will normally be EA identifies potentially significant § 900.405; or
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(2) The nature of the proposed action (c) Applicant role. The draft or final shall, under the direction of the is one without precedent. EIS shall be prepared by the approving official, provide assistance. Commission with assistance from the (d) An NOI to prepare a supplement § 900.306 Proposals normally requiring an applicant under appropriate guidance to a final EIS will be published in those EA. and direction from the Approving cases where a ROD has already been Proposals that normally require Official. issued. preparation of an EA include the (d) Third-party consultants. A third- § 900.404 Adoption. following: party consultant selected by the (a) Initial field demonstration of a Commission or in cooperation with a (a) The Commission may adopt a draft new technology; and cooperating agency may prepare the or final EIS or portion thereof (see 40 (b) Field trials of a new product or draft or final EIS. CFR 1506.3), including a programmatic new uses of an existing technology. (e) Commission responsibility. The EIS, prepared by another agency. Commission shall provide a schedule (b) If the actions covered by the Subpart D—Environmental Impact with time limits, guidance, participate original EIS and the proposal are Statements in the preparation, independently substantially the same, the Commission § 900.401 Notice of intent and scoping. evaluate, and take responsibility for the shall recirculate it as a final statement. Otherwise, the Commission shall treat (a) The Commission shall publish a content of the draft and final EIS. (f) Filing. After a draft or final EIS has the statement as a draft and recirculate NOI, as described in 40 CFR 1508.22, in it except as provided in paragraph (c) of the Federal Register as soon as been prepared, the Commission shall file the EIS with the Environmental this section. practicable after a decision is made to (c) Where the Commission is a prepare an EIS, in accordance with 40 Protection Agency (EPA). The EPA will publish a notice of availability in cooperating agency, it may adopt the CFR 1501.7. If there will be a lengthy EIS of the lead agency without period of time between the accordance with 40 CFR 1506.9 and 1506.10. recirculating it when, after an Commission’s decision to prepare an independent review of the EIS, the (g) Draft to final EIS. When a final EIS EIS and its actual preparation, the Commission concludes that its does not require substantial changes Commission may defer publication of comments and suggestions have been from the draft EIS, the Commission may the NOI until a reasonable time before satisfied. document required changes in errata preparing the EIS, provided that the (d) When the Commission adopts an sheets, insertion pages, and revised Commission allows a reasonable EIS which is not final within the agency sections. The Commission will then opportunity for interested parties to that prepared it, or when the action it circulate such changes together with participate in the EIS process. assesses is the subject of a referral under comments on the draft EIS, responses to Consistent with § 900.201(b), the 40 CFR part 1504, or when the EIS’s comments, and other appropriate Commission and the applicant will adequacy is the subject of a judicial information as its final EIS. The coordinate during the time period prior action which is not final, the Commission will not circulate the draft to the publication of the NOI to identify: Commission shall so specify. the scope of the action, potential EIS again; however, the Commission modifications to the proposal, potential will post the EIS on its Web site and § 900.405 Proposals normally requiring an alternatives, environmental constraints, provide the draft EIS if requested. EIS. potential timeframes for the (h) Record of decision. A record of An EIS will normally be required for: environmental review, and federal, decision (ROD) will be prepared in (a) Large scale infrastructure state, or tribal entities that could be accordance with 40 CFR 1505.2. construction efforts such as the relocation of an entire community; interested in the project, including those § 900.403 Supplemental EIS. with the potential to become (b) A project that requires a formal cooperating agencies. Through the NOI, (a) Supplements to either draft or final consultation under Section 7 of the the Commission shall invite comments EISs shall be prepared, as prescribed in Endangered Species Act; or and suggestions on the scope of the EIS. 40 CFR 1502.9, when the Commission (c) Where implementation of the (b) Publication of the NOI in the finds that there are substantial changes proposal may directly cause or induce Federal Register shall begin the public are proposed in a project that are changes that significantly: scoping process. The public scoping relevant to environmental concerns; or (1) Displace population; process for a Commission EIS shall when there are significant new (2) Alter the character of existing allow a minimum of 30 days for the circumstances or information relevant to residential areas; or receipt of public comments. environmental concerns and bearing on (3) Adversely affect a floodplain. the proposed action or its impacts. § 900.402 Preparation and filing of draft (b) Where Commission action remains Appendix A to Part 900—Categorical and final EISs. to be taken and the EIS is more than Exclusions (a) General. Except for proposals for three years old, the Commission will A. General Categorical Exclusions legislation as provided for in 40 CFR review the EIS to determine whether it Actions consistent with any of the 1506.8, EISs shall be prepared in two is adequate or requires following categories are, in the absence of stages and may be supplemented. supplementation. extraordinary circumstances, categorically (b) Format. The EIS format (c) The Commission shall prepare, excluded from further analysis in an EA or recommended by 40 CFR 1502.10 shall circulate and file a supplement to an EIS EIS: be used unless a determination is made in the same fashion (exclusive of A1. Routine administrative and on a particular project that there is a scoping) as a draft and final EIS. In management activities including, but not limited to, those activities related to compelling reason to do otherwise. In addition, the supplement and budgeting, finance, personnel actions, such a case, the EIS format must meet accompanying administrative record procurement activities, compliance with the minimum requirements prescribed shall be included in the administrative applicable executive orders and procedures in 40 CFR 1502.10, as further described record for the proposal. When an for sustainable or ‘‘greened’’ procurement, in 40 CFR 1502.11 through 1502.18. applicant is involved, the applicant retaining legal counsel, public affairs
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activities (e.g., issuing press releases, B4. Construction or modification of electric Synopsis of the Order newsletters and notices of funding power stations or interconnection facilities availability), internal and external program (including, but not limited to, switching 1. The Order revises the Part 11 EAS evaluation and monitoring (e.g., site visits), stations and support facilities). rules to add three new EAS event codes, database development and maintenance, and B5. Construction of electric powerlines covering extreme wind and storm computer systems administration. approximately ten miles in length or less, or surges, as well as revise the territorial A2. Routine activities that the Commission approximately 20 miles in length or less boundaries of the geographic location does to support its program partners and within previously disturbed or developed codes for two offshore marine areas. The stakeholders, such as serving on task forces, powerline or pipeline rights-of-way. Commission initiated this proceeding in ad hoc committees or representing B6. Upgrading or rebuilding approximately Commission interests in other forums. twenty miles in length or less of existing response to a request from the National A3. Approving and issuing grants for electric powerlines, which may involve Weather Service (NWS) of the National administrative overhead support. minor relocations of small segments or the Oceanic and Atmospheric A4. Approving and issuing grants for social powerlines. Administration (NOAA) that the services, education and training programs, B7. Demolition, disposal, or improvements Commission adopt these revisions to including but not limited to support for Head involving buildings or structures when done harmonize the EAS with the NWS’s Start, senior citizen programs, drug treatment in accordance with applicable regulations, weather radio system. Virtually all including those regulations applying to programs, and funding internships, except commenters addressing these revisions for projects involving construction, removal of asbestos, polychlorinated renovation, or changes in land use. biphenyls (PCBs), and other hazardous supported their adoption. A5. Approving and issuing grants for materials. I. Background facility planning and design. A6. Nondestructive data collection, PARTS 901–999 [RESERVED] 2. The EAS is a national public inventory, study, research, and monitoring warning system through which activities (e.g., field, aerial and satellite Dated: July 6, 2016. broadcasters, cable systems, and other surveying and mapping). Joel Neimeyer, EAS Participants deliver alerts to the A7. Research, planning grants and Federal Co-Chair. public to warn them of impending technical assistance projects that are not [FR Doc. 2016–18176 Filed 8–10–16; 8:45 am] emergencies and dangers to life and reasonably expected to commit the federal property. The primary purpose of the government to a course of action, to result in BILLING CODE P legislative proposals, or to result in direct EAS is to provide the President with development. ‘‘the capability to provide immediate A8. Acquisition and installation of FEDERAL COMMUNICATIONS communications and information to the equipment including, but not limited to, COMMISSION general public at the national, state and EMS, emergency and non-expendable local levels during periods of national medical equipment (e.g., digital imaging 47 CFR Part 11 emergency.’’ The EAS also is used by devices and dental equipment), and state and local governments, as well as communications equipment (e.g., computer [PS Docket No. 15–94; FCC 16–80] the NWS, to distribute alerts. According upgrades). to NWS, about 90 percent of all EAS B. Program Categorical Exclusions Amendment of the Emergency Alert System activations are generated by NWS and Actions consistent with any of the relate to short-term weather events. The following categories are, in the absence of AGENCY: Federal Communications Commission, the Federal Emergency extraordinary circumstances, categorically Commission. Management Agency (FEMA), and NWS excluded from further analysis and documentation in an EA or EIS upon ACTION: Final rule. implement the EAS at the federal level. completion of the Denali Commission The EAS is a broadcast-based, SUMMARY: In this document, the Federal CATEX checklist: hierarchical alert message distribution B1. Upgrade, repair, maintenance, Communications Commission (FCC or system through which an alert message replacement, or minor renovations and Commission) revises its rules governing originator at the local, state or national additions to buildings, roads, harbors and the Emergency Alert System (EAS) to level encodes (or arranges to have other maritime facilities, grounds, add three new EAS event codes, encoded) a message in the EAS Protocol, equipment, and other facilities, including but covering extreme wind and storm which provides basic information about not limited to, roof replacement, foundation surges, as well as revise the territorial repair, ADA access ramp and door the emergency involved. The message is boundaries of the geographic location then broadcast by one or more EAS improvements, weatherization and energy codes for two offshore marine areas. efficiency related improvements, HVAC Participants and subsequently relayed renovations, painting, floor system DATES: Effective September 12, 2016. from one station to another until all replacement, repaving parking lots and FOR FURTHER INFORMATION CONTACT: Lisa affected EAS Participants have received ground maintenance, that do not result in a Fowlkes, Deputy Bureau Chief, Public the alert and delivered it to the public. change in the functional use of the real Safety and Homeland Security Bureau, This process of EAS alert distribution property. at (202) 418–7452, or by email at among EAS Participants is often referred B2. Engineering studies and investigations [email protected]. that do not permanently change the to as the ‘‘daisy chain’’ distribution environment. SUPPLEMENTARY INFORMATION: This is a architecture. B3. Construction or lease of new summary of the Commission’s Order 3. The EAS Protocol utilizes fixed infrastructure including, but not limited to, (Order) in PS Docket No. 15–94, FCC codes to identify various aspects of the health care facilities, community buildings, 16–80, adopted on July 6, 2016, and alert. Of particular relevance to the housing, and bulk fuel storage and power released on July 11, 2016. The full text Order, the EAS Protocol utilizes a three- generation plants, where such lease or of this document is available for character ‘‘event code’’ to describe the construction: inspection and copying during normal nature of the alert (e.g., ‘‘TOR’’ signifies (a) Is at the site of existing infrastructure and capacity is not substantially increased; or business hours in the FCC Reference tornado). The EAS Protocol identifies (b) Is for infrastructure of less than 12,000 Center (Room CY–A257), 445 12th ‘‘National’’ event codes, such as the square feet of useable space when less than Street SW., Washington, DC 20554. The EAN and National Periodic Test (NPT), two aces of surface land area are involved at full text may also be downloaded at: which EAS Participants use as part of a new site. www.fcc.gov. required Presidential alerts and tests,
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and which EAS Participants are County Florida Emergency Management advertising on NWS Web sites; updates required to disseminate, and ‘‘State and observes that ‘‘[c]oastal residents may to official preparedness brochures and Local’’ event codes, such as Amber know or have an anticipated expectation pamphlets; briefings to emergency alerts and weather-related alerts issued regarding the impact of flood warnings managers; presentations at federal, state by the NWS, which EAS Participants which may be due in part to wind, tide, and local hurricane conferences; disseminate on a voluntary basis. In or heavy rain[, and] that anticipation concurrent outreach and partnering addition, the EAS Protocol utilizes six- can be confused unless the wording efforts with FEMA; and extensive digit numerical location codes to used is completely different as community outreach efforts by the NWS identify the geographic area(s) to which proposed.’’ We do not find that the Warning Coordination Meteorologist in the alert applies. Unlike the state and public interest would be served by every Weather Forecast Office impacted territory geographic location codes, relying on inadequate warnings that by tropical cyclones.’’ which are based on an American might provide incorrect or even B. Proposed Geographic Location Code National Standards Institute (ANSI) opposite remedial advice to the public. Revisions standard, the codes assigned to the Based on the record before us and the offshore marine areas were created by subject matter expertise of the NWS, we 7. NWS also requested that the the NWS and adopted by the conclude that adoption of the event Commission revise the areas defined in Commission in 2002 at NWS’s request, codes proposed by the NWS will the geographic location codes identified following notice and opportunity for improve the function of the EAS, in Section 11.31(f) of the EAS rules as public comment. enhance safety of life and property, and location codes 75 and 77, which cover therefore is in the public interest. offshore marine areas. Specifically, II. Discussion NWS indicated that it has changed the 6. We do not find EAS equipment A. Proposed EAS Event Codes end point it uses for generating weather manufacturer, TFT, Inc.’s (TFT), alerts for both of these areas from Bonita 4. NWS requested that the arguments against adoption of the new Beach, Florida, to Ocean Reef, Florida, Commission add a new ‘‘Extreme Wind event codes persuasive. The dangers and, accordingly, requested that the area Warning’’ (EWW) event code to provide posed by hurricane-induced extreme covered by location code 75 be changed the public with advance notice of the high winds and storm surges are well to ‘‘Western North Atlantic Ocean, and onset of extreme sustained surface established, and the record in this along U.S. East Coast, south of Currituck winds (greater than or equal to 115 proceeding establishes a need and Beach Light, NC, following the coastline miles per hour) associated with a major desire for adoption of these codes to to Ocean Reef, FL, including the land-falling hurricane (Category 3 or better address such dangers. The Caribbean,’’ and that the area covered by higher). NWS also requested that the National Association of Broadcasters, location code 77 be changed to ‘‘Gulf of Commission add two new event codes for example, states that ‘‘[e]xplicit codes Mexico, and along the U.S. Gulf Coast covering storm surges: ‘‘Storm Surge for storm surges and warnings would from the Mexican border to Ocean Reef, Watch’’ (SSA) and ‘‘Storm Surge better reflect their rapid development FL.’’ NWS stated that harmonizing the Warning’’ (SSW). NWS indicated that and movement than the existing codes definitions for these areas in the EAS the ‘‘Storm Surge Watch/Warning will for a flood watch or warning, or other rules to match those used by the NWS be issued when there is a significant risk water-related situations.’’ Radio Hatteras would alleviate potential confusion of life-threatening inundation from states that ‘‘[t]he addition of EWW, SSA among broadcasters, the emergency rising water moving inland from the and SSW codes would significantly management community and the ocean.’’ enhance public safety in coastal maritime commerce community that 5. Decision. We grant NWS’s request regions’’ TFT’s objection that the public issue and monitor alerts for these areas. and revise Section 11.31 of the EAS will not appreciate the nuances between NWS again noted that it had checked rules to add the EWW, SSA and SSW the specific dangers posed by extreme with several EAS encoder/decoder event codes to the EAS Protocol. As we winds and storm surges caused by a manufacturers, and was informed that observed in the Notice of Proposed hurricane and the dangers posed the cost and time to make the requested Rulemaking (NWS NPRM) in PS Docket generally by the hurricane itself has no change would be nominal. No. 15–94, 80 FR 47886 (Aug. 10, 2015), support in the record. Monroe County 8. Decision. We grant NWS’s request there is considerable data attesting to Florida Emergency Management, for and change the defined areas identified the dangers posed to life and property example, contends that ‘‘[s]tudies show, in Section 11.31(f) of the EAS rules for by both high winds and, in particular, the public is more likely to follow location codes 75 and 77 to ‘‘Western storm surges, associated with protective action recommendation, such North Atlantic Ocean, and along U.S. hurricanes. While the EAS Protocol as evacuations or shelter in place, or East Coast, south of Currituck Beach currently contains event codes covering limit travel, if the directives are clearly Light, NC, following the coastline to hurricanes, these codes only generally and concisely communicated to them.’’ Ocean Reef, FL, including the warn of an impending hurricane—they Moreover, the NWS indicates that Caribbean,’’ and ‘‘Gulf of Mexico, and do not specifically cover extreme high having the new codes become effective along the U.S. Gulf Coast from the winds associated with a Category 3 or in the summer of 2016 will provide the Mexican border to Ocean Reef, FL,’’ higher hurricane or storm surges NWS sufficient time to conduct respectively. These definitional changes associated with a hurricane. The record outreach and education on the meaning amount to minor modifications to demonstrates that existing event codes of these new codes before the NWS location definitions created and used by contained in the EAS Protocol are not begins to issue alerts using these codes the NWS. Further, harmonizing the Part adequate substitutes for the adoption of for the 2017 hurricane season. The 11 definitions for these locations with the EWW, SSA and SSW event codes. outreach and education that NWS those used by the NWS is necessary to As NWS has observed, for example, use intends to conduct will include a public ensure that the SMW and other marine- of the TOR event code during prior education campaign, including ‘‘public specific alerts reach their intended hurricanes led to confusion among the service announcements over NWR; audiences. Such action also should public and the dissemination of NWS News Releases; official NWS eliminate any potential for confusion incorrect risk-avoidance advice. Monroe Service Change Notifications; that might otherwise exist among EAS
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Participants, the emergency 12. We observe that although EAS benefit is a conservative valuation management community and the equipment manufacturers must make because the EAS is likely to save more maritime commerce community in the the new event and locations codes than just one life in the event of a storm event that the EAS rules and NWS used available to all EAS Participants, these surge or extreme high winds caused by different location definitions. We also manufacturers have indicated in the a Category 3 or higher hurricane, will observe that EAS equipment record that the codes can be accrue annually, and does not include manufacturers have confirmed that implemented by EAS Participants via the benefits associated with reducing these changes can be implemented by minimally burdensome and low cost injuries and associated medical costs, EAS Participants via software software downloads. Further, use of mitigating property damage, and downloads with minimal effort. these codes is not mandatory for EAS minimizing the disruption of our 9. We do not find TFT’s arguments Participants; EAS Participants are free to national economy. Accordingly, we against adoption of the new location implement them if and when they see conclude that the minor burdens codes persuasive. Whether these codes fit, thus reducing the overall costs to associated with adopting these codes are widely used or not, we do not see EAS Participants even further. While will be more than offset by the benefits what public interest would be served by some currently deployed legacy EAS to public safety that will accrue from the allowing continued disharmony device models may not be capable of introduction of these new codes into the between the EAS definitions and those being updated to accommodate these EAS alerting framework. codes, we observe that any such used by the NWS, particularly as these D. Implementation Schedule could lead to marine alerts not reaching equipment already is required to be 15. Decision. We believe that the their intended audiences as well as replaced to accommodate the recently prompt deployment of alerts using these confusion among the maritime users adopted NPT event code and ‘‘000000’’ new codes is consistent with the safety operating in these geographic areas, geographic code for national testing no of the public in affected areas. potentially placing the safety of vessels later than July 30, 2016, thus, no EAS Accordingly, we require EAS equipment and their crews at risk. Further, EAS Participant will be faced with the cost manufacturers to integrate these codes Participants may install and utilize the of obtaining new EAS equipment simply into equipment yet to be manufactured revised codes as they deem fit, and we to use the new event codes and or sold, and make necessary software find that the EAS Participants that geographic locations code revisions upgrades available to EAS Participants actually use these codes are best adopted in this item. 13. Based on the record, we anticipate no later than six months from the situated to determine whether use of the that the only cost to EAS Participants effective date of the rule amendments revised location codes is necessary and who elect to install these new event adopted in this Order. We observe that meaningful to the areas they serve. codes and geographic location code EAS equipment manufacturers already 10. Finally, we also revise footnote 1 revisions will be whatever labor cost is have confirmed that these code changes of Section 11.31 to delete the reference involved in downloading the software can be implemented fairly easily in the to the past deadline and to clarify that patches into their devices and field, and no manufacturer has the numbers assigned to the offshore associated clerical work. We further indicated that implementing such marine areas listed in the table of anticipate that such installation would changes on the production line would geographic areas in Section 11.31(f), not on average take more than one hour. present any difficulties or require any while consistent with the ANSI However, even using a worst case cost more time than six months. We also standard, are not a product of that figure of $125.00 per device—which allow EAS Participants to upgrade their standard, but rather were assigned by figure represents the labor cost estimate existing EAS equipment to include the the NWS. No party commented on that approved by the Office of Management new event and location code revisions proposed change, which in any event, is and Budget for an EAS Participant to fill on a voluntary basis until their largely administrative in nature. We out the Commission’s online reporting equipment is replaced. We observe that conclude that harmonizing the form for EAS National Tests at a total this approach is the same approach definitions in the EAS with those used time expenditure of five hours—the cost taken by the Commission the only other by the NWS will eliminate the potential of implementing these codes are far time that it adopted new event and for needless confusion among EAS exceeded by the benefits they provide. location codes, and the record does not Participants, the emergency At a per-unit cost of $125.00, even if all indicate that any problems arose as a management community and the EAS Participants elected to implement result of that approach. maritime commerce community as to these codes (an unlikely event in areas 16. We will not mandate installation the geographic application of these not prone to hurricanes), the aggregate of these codes. First, the event codes codes, and maintain the efficiency of cost of adopting these new codes would and location code revisions adopted in marine operations and safety of vessels be approximately $3.5 million. this item are germane to only a and their crews. 14. With respect to benefits, we have relatively small subset of EAS Participants located in areas affected by C. Cost Benefit Analysis proposed that the benchmark for measuring these types of expected hurricane high winds and storm surges. 11. The Commission observes that benefits should be the value of a We believe EAS Participants in these EAS equipment manufacturers have statistical life (VSL), currently estimated areas already are highly motivated to indicated in the record that the new at $9.1 million. Accordingly, the value install and use these codes, as codes and code revisions can be of this risk reduction to the public, demonstrated by NWS’s surveys. implemented by EAS Participants via measured in terms of expected lives Second, as indicated, this approach is minimally burdensome and low-cost saved, is at least $9.1 million, which far consistent with the approach taken by software downloads. Further, use of exceeds the one-time, highly the Commission the only other time it these codes is not mandatory for EAS conservative $3.5 million aggregated adopted event and location codes, and Participants; EAS Participants are free to cost estimate if each and every EAS that time the Commission adopted implement them if and when they see Participant across the U.S. elected to codes that were germane to all EAS fit, thus reducing the overall costs to implement these new codes and code Participants. Third, the use by EAS EAS Participants even further. revisions. Furthermore, this expected Participants of these codes, like all State
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and local event codes, is and has always in an alert will allow EAS equipment property, and ensure that the geographic been voluntary, and no commenter has manufacturers and EAS Participants definitions of location codes 75 and 77 presented any arguments as to why that time to resolve any technical issues that utilized by the EAS are harmonized should not continue to be the case. may arise. with those employed by the National 17. Although we are not mandating Weather Service (NWS). that EAS Participants upgrade their III. Procedural Matters existing EAS equipment to incorporate A. Accessible Formats 2. Summary of Significant Issues Raised the new event codes and location code by Public Comments in Response to the 19. To request materials in accessible IRFA revisions, we will require EAS formats for people with disabilities Participants who replace their EAS (Braille, large print, electronic files, 25. The Small Business equipment after one year from the audio format), send an email to fcc504@ Administration (SBA) filed no effective date of this Order to install fcc.gov or call the Consumer & comments in this proceeding, and there EAS equipment that is capable of Governmental Affairs Bureau at 202– were no other comments specifically receiving and transmitting the new 418–0530 (voice), 202–418–0432 (TTY). addressed to the IRFA. event codes and revised location codes. Thus, after this deadline, EAS B. Regulatory Flexibility Analysis 3. Description and Estimate of the Participants may not replace their 20. As required by the Regulatory Number of Small Entities to Which existing EAS equipment with used Flexibility Act of 1980, see 5 U.S.C. 603, Rules Will Apply equipment or older models of the Commission has prepared a Final 26. The RFA directs agencies to equipment that has not been upgraded Regulatory Flexibility Analysis (FRFA) provide a description of and, where to incorporate the new codes. This will of the possible significant economic feasible, an estimate of, the number of ensure that all EAS Participants have impact on small entities of the policies small entities that may be affected by the capability to receive and transmit and rules addressed in this document. the rules adopted herein. The RFA the new codes when their EAS C. Paperwork Reduction Act Analysis generally defines the term ‘‘small equipment is replaced. We observe that entity’’ as having the same meaning as this approach is consistent with that 21. This document does not contain the terms ‘‘small business,’’ ‘‘small taken by the Commission in the Report proposed information collection(s) organization,’’ and ‘‘small governmental and Order in EB Docket No. 01–66, 67 subject to the Paperwork Reduction Act jurisdiction.’’ In addition, the term FR 18502 (April 16, 2002), and allows of 1995 (PRA), Public Law 104–13. In ‘‘small business’’ has the same meaning for a transition of deployed equipment addition, therefore, it does not contain as the term ‘‘small business concern’’ that mirrors ordinary equipment any new or modified information under the Small Business Act. A ‘‘small replacement cycles for those EAS collection burden for small business business concern’’ is one which: (1) Is Participants that do not have an concerns with fewer than 25 employees, independently owned and operated; (2) immediate need to install the new pursuant to the Small Business is not dominant in its field of operation; codes. Paperwork Relief Act of 2002, Public and (3) satisfies any additional criteria 18. With respect to transitioning to Law 107–198, see 44 U.S.C. 3506(c)(4). the new codes, NWS has indicated that established by the SBA. The following it will not initiate alerts using any of the D. Congressional Review Act are categories of small entities that may be affected by the rules adopted in the proposed codes until the 2017 Atlantic 22. The Commission will send a copy Order: Small Businesses, Small Hurricane season. The NWS states that of this Order to Congress and the Organizations, and Small Governmental focusing on the 2017 Atlantic Hurricane Government Accountability Office Jurisdictions; Television Broadcasting season will allow the NWS to deploy pursuant to the Congressional Review (including commercial television the codes in a uniform manner, and will Act (‘‘CRA’’), see 5 U.S.C. 801(a)(1)(A). allow for an extensive public outreach stations; licensed noncommercial program. The 2017 Atlantic Hurricane E. Final Regulatory Flexibility Analysis educational stations; licensed Class A season falls well outside of the six 23. As required by the Regulatory stations; licensed low power television month deadline we adopt today for Flexibility Act of 1980, as amended stations; and licensed TV translators); equipment yet to be manufactured or (RFA), an Initial Regulatory Flexibility Radio Stations (including low power sold and the one year deadline we Analysis (IRFA) was included in the FM stations); Wired require for EAS Participants who NWS NPRM. The Commission sought Telecommunications Carriers; replace their EAS equipment. Thus, comments on the IRFA. Because the Incumbent Local Exchange Carriers EAS Participants will have sufficient Order amends the Commission’s rules, (Incumbent LECs); Competitive Local time to install the codes or purchase this Final Regulatory Flexibility Exchange Carriers (Competitive LECs), compliant equipment in time for the Analysis (FRFA) conforms to the RFA. Competitive Access Providers (CAPs), NWS actual adoption of the codes. Shared-Tenant Service Providers, and Because the NWS implementation dates 1. Need for, and Objectives of, the Order Other Local Service Providers; Satellite for the proposed codes fall outside of 24. This Order adopts changes to the Telecommunications; Direct Broadcast our deadlines, and because the NWS Commission’s Part 11 rules governing Satellite (‘‘DBS’’) Service; and ‘‘All will only deploy the codes after an the Emergency Alert System (EAS). Other Telecommunications’’ (comprised extensive education and outreach Specifically, the Order adds three new of establishments primarily engaged in program, we believe that the NWS will EAS Event Codes, covering extreme providing specialized be able to deliver the appropriate alerts wind (‘‘Extreme Wind Warning’’) and telecommunications services, such as to all recipients without the need for storm surges (‘‘Storm Surge Watch’’ and satellite tracking, communications any transition period where it issues ‘‘Storm Surge Warning’’), and revises telemetry, and radar station operation). alerts using both codes. We also believe the territorial boundaries of geographic 4. Description of Projected Reporting, that the deadlines we adopt today are location codes 75 and 77 used by the Recordkeeping, and Other Compliance consistent with the NWS schedule, as EAS. These rule revisions improve the Requirements any extra time between our deadline capacity of the EAS to warn the public and the NWS’s actual use of the codes of impending threats to life and 27. None.
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5. Steps Taken To Minimize the basis. Thus, the Order does not mandate List of Subjects in 47 CFR Part 11 Significant Economic Impact on Small burdens on regulated entities of any Radio, Television. Entities and Significant Alternatives size. Moreover, the record in this Considered proceeding indicates that the costs Federal Communications Commission. 28. The RFA requires an agency to associated with voluntarily Gloria J. Miles, describe any significant, specifically implementing the codes contained in Federal Register Liaison Officer. the Order should be de minimis or non- small business alternatives that it has Final Rules considered in reaching its conclusions, existent. which may include the following four 30. Report to Congress: The For the reasons discussed in the alternatives (among others): ‘‘(1) The Commission will send a copy of the preamble, the Federal Communications establishment of differing compliance or Order, including this FRFA, in a report Commission amends 47 CFR part 11 as reporting requirements or timetables to be sent to Congress and the follows: that take into account the resources Government Accountability Office PART 11—EMERGENCY ALERT available to small entities; (2) the pursuant to the Congressional Review SYSTEM (EAS) clarification, consolidation, or Act. A copy of the Order and FRFA (or simplification of compliance or summaries thereof) will also be ■ 1. The authority citation for part 11 reporting requirements under the rule published in the Federal Register. continues to read as follows: for small entities; (3) the use of IV. Ordering Clauses performance, rather than design, Authority: 47 U.S.C. 151, 154 (i) and (o), standards; and (4) an exemption from 31. Accordingly, IT IS ORDERED that 303(r), 544(g) and 606. coverage of the rule, or any part thereof, pursuant to Sections 1, 2, 4(i), 4(o), 301, ■ 2. Section 11.31 is amended by for small entities.’’ 303(r), 303(v), 307, 309, 335, 403, revising paragraphs (e) and (f) to read as 29. The rule changes adopted in this 624(g), 706, and 715 of the follows: Order implement certain EAS warning Communications Act of 1934, as codes and location code definitional amended, 47 U.S.C. 151, 152, 154(i), § 11.31 EAS protocol. changes that are unique, and 154(o), 301, 303(r), 303(v), 307, 309, * * * * * implemented by small entity and larger- 335, 403, 544(g), 606, and 615, this (e) The following Event (EEE) codes sized regulated entities on a voluntary Order IS ADOPTED. are presently authorized:
Nature of activation Event codes
National Codes (Required): Emergency Action Notification (National only) ...... EAN. National Information Center ...... NIC National Periodic Test ...... NPT. Required Monthly Test ...... RMT. Required Weekly Test ...... RWT. State and Local Codes (Optional): Administrative Message ...... ADR. Avalanche Warning ...... AVW. Avalanche Watch ...... AVA. Blizzard Warning ...... BZW. Child Abduction Emergency ...... CAE. Civil Danger Warning ...... CDW. Civil Emergency Message ...... CEM. Coastal Flood Warning ...... CFW. Coastal Flood Watch ...... CFA. Dust Storm Warning ...... DSW. Earthquake Warning ...... EQW. Evacuation Immediate ...... EVI. Extreme Wind Warning ...... EWW. Fire Warning ...... FRW. Flash Flood Warning ...... FFW. Flash Flood Watch ...... FFA. Flash Flood Statement ...... FFS. Flood Warning ...... FLW. Flood Watch ...... FLA. Flood Statement ...... FLS. Hazardous Materials Warning ...... HMW. High Wind Warning ...... HWW. High Wind Watch ...... HWA. Hurricane Warning ...... HUW. Hurricane Watch ...... HUA. Hurricane Statement ...... HLS. Law Enforcement Warning ...... LEW. Local Area Emergency ...... LAE. Network Message Notification ...... NMN. 911 Telephone Outage Emergency ...... TOE. Nuclear Power Plant Warning ...... NUW. Practice/Demo Warning ...... DMO. Radiological Hazard Warning ...... RHW. Severe Thunderstorm Warning ...... SVR. Severe Thunderstorm Watch ...... SVA.
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Nature of activation Event codes
Severe Weather Statement ...... SVS. Shelter in Place Warning ...... SPW Special Marine Warning ...... SMW. Special Weather Statement ...... SPS. Storm Surge Watch ...... SSA. Storm Surge Warning ...... SSW. Tornado Warning ...... TOR. Tornado Watch ...... TOA. Tropical Storm Warning ...... TRW. Tropical Storm Watch ...... TRA. Tsunami Warning ...... TSW. Tsunami Watch ...... TSA. Volcano Warning ...... VOW. Winter Storm Warning ...... WSW. Winter Storm Watch ...... WSA.
(f) The All U.S. State, Territory and numbers (CCC) are contained in the codes (SS) are as follows. County ANSI Offshore (Marine Area) ANSI number State EAS Mapbook. numbers (CCC) are contained in the codes (SS) are as follows. County ANSI (f) The All U.S., State, Territory and State EAS Mapbook. Offshore (Marine Area) ANSI number
ANSI No.
All U.S ...... 00 State: ...... AL ...... 01 AK ...... 02 AZ ...... 04 AR ...... 05 CA ...... 06 CO ...... 08 CT ...... 09 DE ...... 10 DC ...... 11 FL ...... 12 GA ...... 13 HI ...... 15 ID ...... 16 IL ...... 17 IN ...... 18 IA ...... 19 KS ...... 20 KY ...... 21 LA ...... 22 ME ...... 23 MD ...... 24 MA ...... 25 MI ...... 26 MN ...... 27 MS ...... 28 MO ...... 29 MT ...... 30 NE ...... 31 NV ...... 32 NH ...... 33 NJ ...... 34 NM ...... 35 NY ...... 36 NC ...... 37 ND ...... 38 OH ...... 39 OK ...... 40 OR ...... 41 PA ...... 42 RI ...... 44 SC ...... 45 SD ...... 46 TN ...... 47 TX ...... 48 UT ...... 49 VT ...... 50 VA ...... 51
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ANSI No.
WA ...... 53 WV ...... 54 WI ...... 55 WY ...... 56 Terr.: AS ...... 60 FM ...... 64 GU ...... 66 MH ...... 68 PR ...... 72 PW ...... 70 UM ...... 74 VI ...... 78 Offshore (Marine Areas) 1 Eastern North Pacific Ocean, and along U.S. West Coast from Canadian border to Mexican border ...... 57 North Pacific Ocean near Alaska, and along Alaska coastline, including the Bering Sea and the Gulf of Alaska ...... 58 Central Pacific Ocean, including Hawaiian waters ...... 59 South Central Pacific Ocean, including American Samoa waters ...... 61 Western Pacific Ocean, including Mariana Island waters ...... 65 Western North Atlantic Ocean, and along U.S. East Coast, from Canadian border south to Currituck Beach Light, N.C ...... 73 Western North Atlantic Ocean, and along U.S. East Coast, south of Currituck Beach Light, NC, following the coastline to Ocean Reef, FL, including the Caribbean ...... 75 Gulf of Mexico, and along the U.S. Gulf Coast from the Mexican border to Ocean Reef, FL ...... 77 Lake Superior ...... 91 Lake Michigan ...... 92 Lake Huron ...... 93 Lake St. Clair ...... 94 Lake Erie ...... 96 Lake Ontario ...... 97 St. Lawrence River above St. Regis ...... 98 1 The numbers assigned to the offshore marine areas listed in this table are not described under the ANSI standard, but rather are numeric codes that were assigned by the National Weather Service.
[FR Doc. 2016–18962 Filed 8–10–16; 8:45 am] Defense Pentagon, Washington, DC Authority: 41 U.S.C. 1303 and 48 CFR BILLING CODE 6712–01–P 20301–3060. Telephone 571–372–6115; chapter 1. facsimile 571–372–6094. ■ 2. Add section 213.201 to read as SUPPLEMENTARY INFORMATION: This final follows: DEPARTMENT OF DEFENSE rule amends DFARS 213.201(g) to add a reference to guidance available in 213.201 General. Defense Acquisition Regulations DFARS Procedures, Guidance, and (g) See PGI 213.201(g) for guidance on System Information on the use of the higher use of the higher micro-purchase micro-purchase thresholds prescribed in thresholds prescribed in FAR 13.201(g) 48 CFR Parts 213 and 218 FAR 13.201(g) to support a declared to support a declared contingency contingency operation or to facilitate [Docket DARS–2016–0023] operation or to facilitate defense against defense against or recovery from nuclear, biological, chemical, or or recovery from nuclear, biological, Defense Federal Acquisition chemical, or radiological attack. Regulation Supplement; Technical radiological attack. A reference to Amendment DFARS 213.201 is also added at DFARS PART 218—EMERGENCY 218.201. ACQUISITIONS AGENCY: Defense Acquisition List of Subjects in 48 CFR Parts 213 and Regulations System, Department of ■ Defense (DoD). 218 3. The authority citation for 48 CFR part 218 is revised to read as follows: ACTION: Final rule. Government procurement. Authority: 41 U.S.C. 1303 and 48 CFR Jennifer L. Hawes, SUMMARY: DoD is making a technical chapter 1. amendment to the Defense Federal Editor, Defense Acquisition Regulations 218.201 [Amended] Acquisition Regulation Supplement System. (DFARS) to provide needed editorial Therefore, 48 CFR parts 213 and 218 ■ 4. Amend section 218.201 by, in changes. are amended as follows: paragraph (3), removing ‘‘See 213.270(c)(3)’’ and adding ‘‘See DATES: Effective August 11, 2016. PART 213—SIMPLIFIED ACQUISITION 213.201(g) and 213.270(c)(3)’’ in its FOR FURTHER INFORMATION CONTACT: Ms. PROCEDURES Jennifer L. Hawes, Defense Acquisition place. Regulations System, OUSD (AT&L) ■ 1. The authority citation for 48 CFR [FR Doc. 2016–18705 Filed 8–10–16; 8:45 am] DPAP (DARS), Room 3B941, 3060 part 213 continues to read as follows: BILLING CODE 5001–06–P
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DEPARTMENT OF TRANSPORTATION affect today’s rulemaking and are response to public comments, FTA has discussed further, below. made a number of nonsubstantive, Federal Transit Administration clarifying edits. In addition, FTA has B. Statutory Authority made the following substantive changes: 49 CFR Part 670 Under 49 U.S.C. 5329 (Section 5329), 1. Amended section 670.23(b) to state FTA, through the authority delegated by that FTA may withhold not more than [Docket No. FTA–2015–0009] the Secretary of the Department of 25 percent of a recipient’s Urbanized Transportation, must create a RIN 2132–AB22 Area Formula funds. comprehensive Public Transportation 2. Amended section 670.27 to provide Public Transportation Safety Program Safety Program. Most notably, Section that the Deputy Administrator may 5329 provides FTA with the following issue special directives, with petitions AGENCY: Federal Transit Administration explicit authorities to administer the for reconsideration going to the (FTA), Department of Transportation Safety Program and to take enforcement Administrator. (DOT). actions: • 3. Amended section 670.29 to remove ACTION: Final rule. 49 U.S.C. 5329(f), provides FTA with the authority to inspect and audit language stating that FTA would consider whether a recipient has SUMMARY: The Federal Transit a public transportation system; make complied with an advisory when taking Administration is issuing a final rule to reports and issue directives with respect enforcement actions. establish substantive and procedural to the safety of a public transportation rules for FTA’s administration of a system or the public transportation D. Costs and Benefits comprehensive safety program to industry generally; issue subpoenas and This final rule establishes substantive improve the safety of the Nation’s take depositions; require the production and procedural rules for FTA’s authority public transportation systems. This final of documents; prescribe recordkeeping to inspect, investigate, audit, examine rule provides the framework for FTA to and reporting requirements; investigate and test transit agencies’ facilities, monitor, oversee and enforce transit public transportation accidents and equipment, and records; direct or safety, based on the methods and incidents; enter into and inspect the withhold Federal transit funds; and principles of Safety Management equipment, rolling stock, operations and issue directives and advisories. The Systems. relevant records of a public transportation system; and issue final rule does not impose additional DATES: The effective date of this rule is regulations. costs on entities other than FTA. The September 12, 2016. • 49 U.S.C. 5329(g) authorizes FTA to costs to recipients associated with FOR FURTHER INFORMATION CONTACT: For take enforcement actions against a FTA’s enforcement authorities are program matters, contact Brian Alberts, recipient of Federal financial assistance captured in the rulemakings for Public Office of Transit Safety and Oversight, under 49 U.S.C. chapter 53 that is Transportation Agency Safety Plans, (202) 366–1783 or brian.alberts@ noncompliant with Federal transit State Safety Oversight, and the Public dot.gov. For legal matters, contact safety law, through issuing directives, Transportation Safety Certification Candace Key, Office of Chief Counsel, requiring more frequent oversight, Training Program. FTA received a (202) 366–1936 or [email protected]. imposing more frequent reporting number of comments on the cost SUPPLEMENTARY INFORMATION: requirements, requiring that chapter 53 assumptions in the NPRM, which are summarized in section III, below. Table of Contents funds be spent to correct safety deficiencies before those funds are spent II. Rulemaking Background I. Executive Summary on other projects, and withholding A. Purpose of Regulatory Action funds from a recipient. On October 3, 2013, FTA introduced B. Statutory Authority • 49 U.S.C. 5329(h) authorizes FTA to the transit industry to fundamental C. Summary of Major Provisions impose restrictions and prohibitions on changes to the Federal transit safety D. Costs and Benefits program authorized by MAP–21 with a II. Rulemaking Background a recipient’s operations, where FTA determines that an unsafe practice or consolidated advance notice of III. Summary of NPRM Comments and FTA’s proposed rulemaking (ANPRM). 78 FR Responses condition creates a substantial risk of A. General Comments death or personal injury. 61251. FTA issued the ANPRM to provide the public with a better B. Section-by-Section Comments C. Summary of Major Provisions IV. Regulatory Analyses and Notices understanding of FTA’s proposed In the Notice of Proposed Rulemaking approach to implementing the I. Executive Summary (NPRM), 80 FR 48794, (August 14, requirements for transit asset 2015), FTA proposed (1) to add a new management and safety, and to obtain A. Purpose of Regulatory Action part 670, ‘‘Public Transportation Safety stakeholder input. Throughout the This final rule establishes substantive Program,’’ to title 49 of the Code of ANPRM, FTA expressed its intention to and procedural rules to support the Federal Regulations (CFR); (2) to adopt a comprehensive approach to Federal Transit Administrator in formally adopt a Safety Management transit asset management and safety that carrying out the Public Transportation Systems (SMS) approach as the would be scalable and flexible. In Safety Program (Safety Program), first foundation of the Safety Program; (3) to addition, the ANPRM highlighted the authorized in the Moving Ahead for establish substantive and procedural inherent linkages between asset Progress in the 21st Century Act (MAP– rules for FTA’s administration of the condition (state of good repair) and 21) (Pub. L. 112–141 (2012)), and Safety Program; and (4) to describe the safety performance through the codified at 49 U.S.C. 5329. On contents of a National Public explanation of FTA’s anticipated December 4, 2015, the President signed Transportation Safety Plan (National proposal to adopt the principles and into law the Fixing America’s Surface Safety Plan or Plan). methods of SMS as the foundation for Transportation (FAST) Act (Pub. L. 114– This final rule will add a new part the development, implementation, 94 (2015)). The FAST Act made two 670, ‘‘Public Transportation Safety oversight and enforcement of the Safety amendments to the Safety Program that Program,’’ to title 49 of the CFR. In Program.
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In the August 2015 NPRM, FTA required under 49 U.S.C. 5329. Some layoffs. Commenters noted that the proposed a series of specific substantive commenters indicated that it is difficult expected cost implications would create and procedural rules for FTA’s to evaluate and quantify the costs of significant issues with their administration of the Safety Program. implementing each component of the prioritization of funding. FTA took the public comments on both Safety Program rule until FTA issues all Several commenters recommended the ANPRM and NPRM into of the final rules on safety. that FTA work to secure the necessary consideration in developing today’s Several commenters requested that funding at the Federal, State, and local final rule. FTA cite the research study that level and that each State be allowed to provided the data and analysis distribute the funds. One commenter III. Summary of NPRM Comments and supporting its assumption that the rule stated that FTA should examine the FTA’s Responses would not have a financial impact on process by which other U.S. Department FTA received comments from 118 the economy, States, and transit of Transportation agencies secure entities, including transit agencies, trade agencies. Some commenters noted that funding for their safety programs. recipients would incur additional costs associations, state and local FTA Response: Funding governments, and private citizens. Some such as requiring more staff to comments were outside the scope of this implement SMS and comply with FTA’s The Safety Program is a requirement rulemaking, and some pertained to other safety rulemakings. Other commenters of 49 U.S.C. 5329. Congress determines safety rulemakings. For example, many suggested that recipients would incur the level of funding for the Federal commenters expressed support for costs when responding to FTA transit program. FTA recognizes the MAP–21’s safety objectives, but enforcement actions. need for increased investments in transit at all levels of government, and indicated that FTA appeared to be using FTA Response: Costs and Benefits language to implement SMS principles recommends funding levels for the that would be more appropriate for the FTA has considered the comments Federal transit programs through the rail transit industry or that do not and continues to find that this rule does annual congressional appropriations translate easily to the bus industry. To not impose specific costs to recipients. process. Rather, this final rule establishes the extent these comments concerned Comments: Tribal Consultation the applicability of FTA’s authority to substantive and procedural rules to FTA received one comment related to specific types of transit agencies, please support FTA’s own administration of Tribal consultation. The commenter see the below discussion on ‘‘Purpose the Safety Program. The final rule does indicated that the worthy goal of this and Applicability.’’ To the extent these not require recipients to take any rulemaking can only properly be comments concerned the scalability of specific action. Specific requirements realized in Indian Country following SMS, we believe they are more for recipients, such as implementing meaningful consultation with Tribal appropriately handled in the final rule SMS, have been outlined by FTA in the governments and technical discussions concerning the Public Transportation proposed and final rulemakings (as and collaboration with the Tribal Agency Safety Plans, which FTA plans applicable) for Public Transportation Transportation Program Coordinating to issue in the coming months. In Agency Safety Plans, the State Safety Committee. The commenter noted that general, this document does not respond Oversight Program, and the Public most Tribal transit systems operate on a to those comments that were not related Transportation Safety Certification very small scale, and with severe to the substance of today’s rulemaking; Training Program. The cost projections, financial and administrative limitations. however, to assist with understanding underlying assumptions, and research The commenter stated that for these the intent of today’s rule, FTA does for each requirement are included in the practical reasons, FTA has an obligation address some comments that are related cost benefit analysis section for each of as a prudent policy maker to engage in to other safety rulemakings. Following those rulemakings. a meaningful consultation with Tribal are summaries of the comments Comments: Funding nations prior to developing regulations received and FTA’s responses. A few commenters stated that that will apply to Tribally-operated A. General Comments adequate funding should be set aside, transit systems. The commenter stated authorized, and appropriated by that the represented Tribes do not agree Comments: Costs and Benefits Congress prior to implementation of this with FTA’s view that Tribal A number of commenters stated that rulemaking. Further, a few commenters consultation requirements do not apply the rule would have moderate to indicated that funding to implement the to this rule. The commenter significant direct cost implications and Safety Program (including reporting recommended that FTA either clarify economic impacts, due to its detailed requirements) should not come from the scope of the rule so that it does not implementation requirements, including existing operating and capital apply to Tribes or engage in formal nationwide SMS implementation. Some improvement grant funds, but rather Tribal consultation before issuing a final commenters were concerned that the from new and additional grant funds set rule. proposed rule would impose costs and aside by FTA. One commenter administrative burdens on States and suggested that FTA create a special FTA Response: Tribal Consultation transit agencies. Some commenters category of funding that local agencies FTA appreciates the comments from suggested that the NPRM would be an could use to pay for the costs to mitigate Tribal representatives. However, FTA ‘‘unfunded mandate’’ because FTA did risks associated with safety inspection disagrees that this rule will have not identify any specially designated findings. One commenter suggested that ‘‘substantial direct effects on one or funding that could be used by recipients FTA designate special funding for more Indian Tribes, on the relationship towards complying with the rule. Some hazard mitigation. between the Federal Government and commenters stated that FTA had not Some commenters noted that FTA Indian Tribes, or on the distribution of properly accounted for the costs to should be aware of existing and power and responsibilities between the recipients, including State Safety increasing funding shortfalls already Federal Government and Indian Tribes.’’ Oversight Agencies (SSOAs), to faced by many recipients, including Executive Order 13175, November 6, implement the other rulemakings forced service cuts, fare increases and 2000. This rule establishes substantive
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and procedural rules for FTA’s relationship between the National commenter recommended that FTA add administration of the Safety Program. As government and the States, or on the language under section 670.1 to state noted above, this regulation outlines distribution of power and that the part would not apply to public FTA’s authorities to conduct reviews, responsibilities among the various transportation systems that only receive audits, investigations, examinations, levels of government. FTA does not Section 5310 funds. The commenter inspections and testing, and to issue believe that this rule has substantial also recommended that FTA allow findings and directives which would direct effects on States or local direct recipients under the Section 5310 require corrective actions by recipients. governments or the distribution of program to lay out their approach to The rule does not impose specific power and responsibilities among the safety for their subrecipients in the State requirements on Tribes or any other various levels of government. Further, or Program Management Plan required recipients. Therefore, FTA finds that the this rule does not preempt State or local under the Section 5310 program circular final rule does not impose substantial law. This rule merely restates FTA’s (C 9070 1G). direct effects on one or more Indian statutory authority to administer the FTA Response: Purpose and Tribes and does not impose substantial Safety Program and provides processes Applicability direct compliance costs on Tribal to support FTA’s administration of the governments. Safety Program. With the enactment of MAP–21, Although not required to under Congress directed FTA to develop a B. Section by Section Comments Executive Order 13175, FTA has Public Transportation Safety Program engaged in active consultation with Subpart A General Provisions for all recipients of Federal financial assistance under 49 U.S.C. chapter 53. Tribes in the development of this final 670.1 Purpose and Applicability rule. In advance of publishing an Section 5329(a) of Title 49 of the United NPRM, FTA sought comment from the This section proposed that the States Code specifically defines transit industry on a wide range of purpose of the regulations would be to recipient as a ‘‘State or local topics pertaining to the new Public establish a Public Transportation Safety governmental authority, or any other Transportation Safety Program Program, and that the part would apply operator of a public transportation provisions authorized by MAP–21 to all recipients of Federal transit funds. system.’’ Accordingly, this final rule through an ANPRM. FTA asked specific Comments: Purpose and Applicability applies to recipients of Federal financial questions about how FTA should apply assistance under 49 U.S.C. chapter 53, Several commenters requested the new safety requirements to regardless of mode, including recipients clarification regarding the applicability recipients of the section 5311 Tribal of funding under 49 U.S.C. 5310 that of the proposed rule. One commenter Transit Formula Program and Tribal provide public transportation, States, asked for clarification regarding the Transit Discretionary Program. SSOAs, and Tribes. The rule applies to statutory authority that was referenced Additionally, FTA continued to engage contractors who function in the capacity in the proposed purpose and with the industry following the of the defined recipients; however, a applicability section. recipient ultimately is responsible for publication of the NPRM through One commenter stated that the ensuring its contractors are in subsequent outreach efforts, including a proposed rule could be read to apply to webinar for small, rural and Tribal compliance with the Safety Program. Tribes that are direct recipients and to FTA recognizes that some recipients, transit providers, which was held on Tribes that are subrecipients of a State. October 27, 2015. FTA also held a such as commuter rail operators, are Some commenters suggested that the subject to the safety regulatory listening session at the National Rural rule should not apply to commuter rail Transit Assistance Program Annual requirements of other Federal agencies. operators that are subject to Federal Accordingly, a chapter 53 recipient that Meeting, which historically has been Railroad Administration (FRA) well attended by Tribal representatives. operates commuter rail, light rail, and a regulations and recommended that FTA bus system will continue to have its Comments: Other amend subpart D to clearly exclude commuter rail operations governed by One commenter suggested that the commuter railroads. A few commenters the FRA, but its light rail and bus proposed rule would create federalism queried whether the proposed rule operations will be governed by 49 issues and asked FTA to explain why it would apply to bus operations. Two U.S.C. 5329 and FTA’s safety did not believe that the rule would commenters asked if SSOAs would be regulations. create federalism issues. considered recipients within the scope FTA has amended this section in the of this rule. One commenter suggested final rule to align with the definition of FTA Response: Other that FTA clarify whether the proposed ‘‘recipient’’ at 49 U.S.C. 5329(a) and to Pursuant to Executive Order 13132, to rule would apply to third party clarify that the rule establishes the extent practicable and permitted by contractors. substantive and procedural rules for law, a Federal agency cannot Some commenters indicated that the FTA’s administration of the Safety promulgate two types of rules unless it rule should allow flexibility for a State Program. meets certain conditions. The two types recipient to determine whether the rules of rules are: should apply to subrecipients. One 670.3 Policy 1. Rules with Federalism commenter asserted that Section 5329 This section proposed the formal Implications, substantial direct allows FTA to adopt a different adoption of Safety Management Systems compliance costs on state and local approach for the Enhanced Mobility of (SMS) as the basis for enhancing the governments, and not required by Seniors and Individuals with safety of public transportation in the statute, and Disabilities Formula Program authorized United States. 2. Rules with Federalism Implications at 49 U.S.C. 5310 (Section 5310) because and that preempt state or local law. Section 5329 specifically references the Comments: Policy: Safety Management Federalism Implications are defined Rural Area Formula Program, 49 U.S.C. Systems as having substantial direct effects on 5311, and the Urbanized Area Formula A number of commenters indicated States or local governments Program, 49 U.S.C. 5307, but makes no support for FTA’s adoption of SMS (individually or collectively), on the reference to Section 5310 grantees. The principles and methods as the basis for
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the Safety Program. Other commenters approach to achieving this goal by support to a subrecipient agency, is not were critical of SMS being FTA’s sole building a 21st-century safety regime an Accountable Executive with respect approach to implementing the Safety that is flexible, scalable, and responsive to that agency. Finally, one commenter Program. Some commenters stated that to emerging safety issues. asked FTA to define ‘‘Transit Asset FTA’s approach is focused on urban rail FTA has revised this section in the Management Plan,’’ which appears transit systems. These commenters final rule to clarify that the policy without elaboration in the definition of noted that FTA should provide statement specifically applies to actions Accountable Executive. alternative methods for implementing undertaken by FTA. FTA RESPONSE: FTA has aligned the definition of ‘‘Accountable Executive’’ the Safety Program that are consistent 670.5 Definitions with SMS concepts, but are more with the definition established in the applicable to smaller bus systems. This section included proposed final State Safety Oversight rule, now Several commenters suggested that definitions for terms used in the NPRM. codified at 49 CFR part 674. FTA FTA adopt an approach that is simple Comments: Definitions believes the definition is both broad and to understand and easy to implement. specific enough to allow the intended One commenter expressed confidence Commenters generally were local safety oversight responsibility to that an SMS approach would result in concerned that any words or language function effectively while also allowing improved and uniform safety standards intended to describe an event or for flexibility to scale to the needs of across the country, but suggested that circumstance that would trigger an various recipients and their systems. without further clarification from FTA, enforcement action under the proposed Notably, a State DOT would not be an the proposed rule could unduly burden rule must be defined clearly and Accountable Executive; however, there smaller public transportation systems by concisely so that all affected recipients may be situations in which an employee subjecting them to currently unknown are treated equally. Some commenters of a State DOT is an Accountable facets of SMS that are only necessary or, felt that if the terms were left to the Executive, as when the State DOT in practice, applicable to the largest discretion and interpretation of the provides public transportation service. public transportation systems. investigator or FTA representative FTA declines to establish minimum handling the issue, there would be the qualifications for Accountable FTA RESPONSE: Policy: Safety potential for an uneven application of Executives, as the level of experience Management System the regulation across recipients and and authority required may vary from FTA understands those commenters subrecipients. In light of this concern, a agency to agency. The term ‘‘Transit that expressed concern over FTA’s number of commenters suggested that Asset Management Plan’’ which appears proposed adoption of SMS as the basis FTA clarify some of the proposed within the definition of ‘‘Accountable for the Safety Program. To clarify, the definitions, including, specifically, Executive’’ is not defined in this rule NPRM did not propose, nor does this Accountable Executive; pattern or because it is defined in FTA’s recently final rule require a recipient to adopt practice; audit; examination; inspection; issued Transit Asset Management rule. SMS. On February 5, 2016, FTA issued investigation; corrective action plan; (See 81 FR 48890, July 26, 2016.) FTA a proposed rule for Public advisory; National Public believes the definition for ‘‘National Transportation Agency Safety Plans that Transportation Safety Plan; recipient; Public Transportation Safety Plan’’ is would require each recipient to develop and testing. sufficient given the additional an agency safety plan based on SMS In general, FTA appreciates the description of the Plan in section (See 81 FR 6344–71). The preamble to concerns regarding some of the 670.31. that rule describes SMS as a scalable proposed definitions, and the requests and flexible approach that can apply for additional definitions. As ‘‘Pattern or practice’’ and ‘‘Finding’’ across the transit industry. The appropriate, FTA has incorporated into A number of commenters were comment period for the Public this rulemaking definitions that appear concerned that the definition of ‘‘pattern Transportation Agency Safety Plan in other Section 5329 rulemakings, or practice’’ is unclear, and does not closed on April 5, 2016. FTA is including the definition of hazard. FTA explicitly define what constitutes a reviewing the public comments and made changes to the following ‘‘finding.’’ In particular, commenters anticipates publishing a final rule this definitions to clarify their meaning: were concerned with the lack of calendar year. Advisory; audit; corrective action plan; specificity on what minimal and FTA disagrees with those commenters directive; examination; inspection; maximal time span between findings who suggest that SMS is not a practical pattern or practice; and State Safety would constitute a pattern; whether approach for the Nation’s diverse transit Oversight Agency. findings would be limited to only industry. FTA is taking a risk-based, violations found during one proactive approach to implementation ‘‘Accountable Executive’’ investigation or over multiple of the Public Transportation Safety Several commenters asked whether an investigations; and whether findings Program. Specifically, the SMS pillars of ‘‘Accountable Executive’’ would be an must be related or be of some specific safety risk management and safety agency CEO or general manager. Some but undefined level of severity. assurance are designed to assist in commenters also asked for clarification Commenters suggested that ‘‘finding’’ identifying in advance where potential on the qualifications required to fulfill should be included as a defined term, to safety risks reside, and developing and this role, stating that incumbents with clarify how the results of inspections, implementing mitigations (rules, this responsibility should possess investigations, audits, examinations and directives, guidance, best practices) that comparable levels of competence, testing relate to ‘‘findings’’ and whether would prevent the likelihood and experience and authority to ensure the conclusions from inspections, minimize the severity of the risk. FTA consistency across the industry. One investigations, audits, examinations and is committed to developing, commenter requested that FTA revised testing constitute ‘‘findings’’ or if a implementing, and consistently the definition to state that a State ‘‘finding’’ is something pursuant to a improving strategies and processes to Department of Transportation (State more specific process or particular ensure that transit achieves the highest DOT), by virtue of providing funds, procedure. Some commenters suggested practicable level of safety. SMS is FTA’s advice, or administrative planning or that pattern or practice should be more
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explicitly defined as two or more events out its congressionally mandated safety explicitly exclude SSOAs from the within a 12-month period. Finally, a few oversight role. definition of ‘‘recipient.’’ commenters stated that a pattern or FTA RESPONSE: In response to ‘‘Unsafe Condition or Practice’’ and practice should only apply to multiple comments, FTA has revised the ‘‘Safety Violation’’ findings with the same operator and not definition of ‘‘recipient’’ to align with across multiple operators in an overall With respect to the definition of the statutory definition of that term at public transit system. ‘‘pattern or practice’’ and in general 49 U.S.C. 5329(a). We have also clarified FTA RESPONSE: FTA has chosen not response to the proposed rule’s sections that the term ‘‘recipient’’ includes State to make substantive changes to the on enforcement actions, several Safety Oversight Agencies. proposed definition of ‘‘pattern or commenters asked FTA to define ‘‘More Frequent Oversight’’ practice.’’ A narrow definition of this ‘‘unsafe condition or practice’’ and term would limit FTA’s ability to ‘‘safety violation.’’ Some also suggested A few commenters asked FTA to administer its safety oversight adding the term ‘‘serious’’ or ‘‘serious define what it meant by ‘‘more frequent responsibilities. Moreover, a pattern or safety violation’’ as a definition to oversight’’ as part of the suite of practice triggering an enforcement clarify what constituted ‘‘serious’’ safety enforcement actions that FTA could action will differ from one recipient to violations, and what the relative and initiate under section 670.21. the next, and will depend, in part, on a actionable difference was between a FTA RESPONSE: FTA does not agree recipient’s mode of operation, the size ‘‘serious’’ safety violation and a safety that it should provide a definition for and complexity of the recipient’s violation that was not ‘‘serious.’’ the term ‘‘more frequent oversight.’’ The operations, and the recipient’s unique FTA RESPONSE: FTA does not frequency of enhanced oversight of a operating environment. This same believe that it is appropriate to define recipient by FTA will vary on a case-by- rationale applies to many other ‘‘serious safety violation’’ through case basis. definitions FTA is leaving unchanged. regulation. As previously mentioned, ‘‘Reportable Incident’’ and Finally, terms such as ‘‘finding’’ that are FTA’s approach to the administration of not defined by statute or regulation will ‘‘Occurrence’’ the safety program is both scalable and be interpreted in accordance with the One commenter asked if the flexible. A narrow definition of ‘‘serious definition set forth in dictionaries of definitions from FTA’s SSO rule, safety violation’’ would impede FTA’s common usage. codified at 49 CFR 674, of ‘‘reportable ability to provide flexible oversight of incident’’ and ‘‘occurrence’’ would be ‘‘Examination,’’ ‘‘Inspection,’’ ‘‘Audit’’ the Safety Program. For example, a incorporated into the current proposed and ‘‘Investigation’’ serious safety violation could include a rule. Several commenters stated the violation of Federal transit safety law FTA RESPONSE: Definitions for differences between the definitions of that leads to death or serious injury of ‘‘reportable incident’’ and ‘‘occurrence’’ ‘‘examination,’’ ‘‘inspection,’’ ‘‘audit’’ a passenger or transit employee. A were not included in the NPRM, and and ‘‘investigation’’ were minor and not serious safety violation also could therefore, will not be included in this well-defined, particularly the include a violation of Federal transit final rule. differences between examination and safety law that could lead to death or inspection. Some questioned why an serious injury of a passenger or transit ‘‘Corrective Action Plan’’ inspection might lead to a finding of a employee. Further, a serious safety A few commenters asked FTA to pattern or practice of safety violations, violation could include a rail transit enhance the existing ‘‘corrective action but examinations and audits would not. agency’s failure to comply with a plan’’ definition to capture the broader One commenter suggested deleting corrective action plan or a small bus processes or mechanisms associated ‘‘examination’’ since it was very similar operator’s failure to develop and with the ongoing management of to ‘‘inspection.’’ implement a transit agency safety plan, corrective action plans by recipients and FTA RESPONSE: In response to once the rule requiring such plans oversight agencies. concerns over the lack of obvious becomes final. FTA does not believe FTA RESPONSE: FTA has revised the distinctions between the definitions of that the aforementioned examples, definition of ‘‘corrective action plan’’ to examinations, inspections, audits and however, encompass the full scope of align with the definition of that term in investigations, FTA has revised the what FTA could consider a serious the final rule for State Safety Oversight definition of ‘‘inspection’’ in the final safety violation, and therefore does not at 49 CFR part 674. rule to elaborate on the activities and agree that it should define the term in distinguishing characteristics of an this rule. Other Terms inspection versus an ‘‘examination.’’ ‘‘Recipient’’ One commenter asked for definitions Specifically, the final rule clarifies that of the following individual terms: an inspection is a physical act of Some commenters stated that ‘‘hazard’’; ‘‘assessment’’; ‘‘evaluation’’; observation whereas an examination is although the definition of ‘‘recipient’’ ‘‘light rail’’ and ‘‘heavy rail’’; a process. Each of these functions— implies inclusion of SSOAs as ‘‘enforcement’’; ‘‘employee accident and investigations, inspections, audits, and recipients of Chapter 53 funding, the injury’’; and ‘‘near miss’’. Commenters examinations—are authorized by 49 description of actual affected entities also suggested that FTA define the U.S.C. 5329(g), and each is a separate throughout the NPRM suggested that it following additional terms: analysis; but integral part of the overall applied to public transit agencies and safety deficiency; noncompliance; mechanism and process for collecting not SSOAs. Those commenters asked for public transportation system; and state relevant information for purposes of clarification on whether SSOAs were of good repair. safety oversight. FTA has chosen not to implicitly included in the definition. FTA RESPONSE: FTA is not define the phrase ‘‘reasonable time and Those commenters further stated that if including definitions for the following manner’’ as it applies to this FTA intended to include SSOAs, there terms that were not included in the information collection process, as a would be a disincentive for SSOAs to NPRM proposals: ‘‘light rail,’’ ‘‘heavy narrow definition of this term would participate in the formula grant rail,’’ ‘‘employee accident and injury,’’ impede FTA’s ability to effectively carry program, and recommended that FTA and ‘‘near miss.’’ The following terms
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are not defined in this rule, statute or expected as transit agencies seek to audit or investigation. One commenter regulation and will be interpreted in accommodate FTA’s efforts and indicated support for unannounced FTA accordance with the definition set forth requirements. Another commenter inspections, testing, and records in dictionaries of common usage: requested that FTA define the SSOA’s reviews, but noted that the Federal ‘‘assessment’’; ‘‘evaluation’’;’’ analysis’’; role and responsibilities when FTA process should not prevent the transit and ‘‘noncompliance.’’ takes enforcement actions. agency from providing its routine transit FTA does not agree that it needs to One commenter stated that FTA service safely, nor put any of the FTA, define the term ‘‘public transportation should clarify whether it has the SSOA, transit agency personnel, or system.’’ FTA believes that it is clear authority to enter a transit property even members of the public at risk during the that the term means a transit system without the consent of the recipient. process. operated by a recipient of funds under The commenter noted that even with Some commenters recommended that 49 U.S.C. chapter 53 and ‘‘recipient’’ is written notification, a recipient may Federal personnel should receive the a defined term under the rule. object to external auditors entering its recipient’s approved track safety FTA does not agree that it should property for various reasons, including training prior to conducting activities define the term ‘‘safety deficiency.’’ insufficient training (such as roadway within a recipient’s transit system. One What amounts to a ‘‘safety deficiency’’ worker protection) and administrative commenter stated that Federal will vary on a case-by-case basis. issues, such as schedule conflicts. Other personnel should provide a recipient As required by 49 U.S.C. 5326(b)(1), commenters requested that FTA clarify with details of their safety training and FTA has defined the term ‘‘state of good the following: (1) Whether its certification. repair’’ in the Transit Asset representatives must be escorted by One commenter stated that a final rule Management final rule, which was authorized transit agency explicitly should allow host agencies to published on July 26, 2016. (81 FR representatives while on the property determine reasonable and safe options 48889). for the purposes of conducting an audit for granting an FTA request to inspect or inspection; and (2) whether FTA or test equipment, or to enter restricted Subpart B—Compliance Assessments representatives must receive agency- or otherwise potentially hazardous In this final rule, FTA has changed required safety training (such as areas. Additionally, the commenter the heading of this subpart from roadway worker protection) in order to suggested that a final rule should allow ‘‘Compliance Assessments’’ to enter a rail right-of-way. Several the host agency’s lead representative to ‘‘Inspections, Investigations, Audits, commenters noted that FTA should call an emergency ‘‘stop’’ to activities, at Examinations and Testing’’ to better require its representatives to follow all his or her discretion, for fire-life-safety describe the subject matter of this of a recipient’s applicable safety rules reasons, if unsafe behavior is observed subpart. and procedures during the course of that could potentially place a person in conducting an audit or inspection. danger, or if required personal 670.11 General Regarding the process for providing protective equipment is not worn or not In this final rule, FTA has changed notice, some commenters stated that used appropriately. the title of this section from FTA should provide advance written Commenters requested additional ‘‘Inspections, Investigations, Audits, notice to a recipient stating the purpose details regarding how, why and when Examinations and Testing’’ to for the inspection. Several commenters FTA would enter a public transportation ‘‘General.’’ In the NPRM, this section set noted that the written notice should system to conduct a safety inspection. forth FTA’s statutory authority to reference the specific information that Commenters also requested that FTA conduct inspections, investigations, FTA would be seeking. A few define its role, responsibilities and audits, examinations and testing. In the commenters recommended that FTA authority in the testing and inspection NPRM, FTA asked how it should define also provide notice to an SSOA prior to of a public transportation system’s ‘‘reasonable time and manner’’ for inspecting a rail transit agency. Many equipment, facilities, rolling stock and entering into and inspecting a commenters suggested that the written operations. recipient’s equipment, facilities, rolling notice should be directed to a A number of commenters questioned stock, operations, and relevant records. recipient’s general manager, chief how FTA and SSOAs would coordinate executive officer, or other Accountable activities with a rail transit agency when Comments: General Executive, with a copy provided to the FTA exercises its authority under the With respect to ‘‘reasonable time,’’ SSOA. A few commenters stated that section. Some commenters commenters suggested: (1) At least forty- notification should include an official recommended that FTA develop eight hours; (2) twenty-four hours; (3) a letter emailed to the Accountable program standards for conducting few days (4); five days; (5) thirty days; Executive or their designated point of activities under the section and submit and (6) sixty days. A few commenters contact and a phone call. Several them for public comment. Several also recommended that FTA adopt the commenters suggested that FTA require commenters also noted that the investigation processes currently used some form of delivery/read receipt to proposed regulatory text did not include by other Federal agencies. A few confirm a recipient’s receipt of the notification to the State when FTA commenters indicated the need for more notification. would notify a recipient of its intent to clarity and requested that FTA propose One commenter recommended that exercise authority under the section. A specific language to define the terms FTA work cooperatively and few other commenters recommended ‘‘reasonable time’’ and ‘‘reasonable collaboratively with a recipient to that FTA focus its oversight on rail manner.’’ One commenter requested establish an agenda for the site visit. safety, asserting that bus-only systems clarity regarding ‘‘written notice’’ as it is Other commenters acknowledged that are already safe. used in section 670.11(b). Another emergency situations would eliminate One commenter asked how FTA’s commenter asked what would trigger an the need for notification. Two inspections, oversight, safety standards, inspection: passage of time; a particular commenters noted that there should be or directives would complement, incident; or an industry-wide issue. The limits on the number of times FTA can supplement, or possibly conflict with commenter stated that uncertainties audit a transit agency unless there are those of SSOAs. The commenter would lead to confusion about what is significant safety findings during an recommended that FTA clarify the
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nature of coordination, if any, between reporting requirements’’ was meant to facilities, rolling stock and operation, as FTA and an SSOA. The commenter also apply solely to the production of each activity may require flexibility on suggested that FTA’s authority to documents for the purposes of the behalf of FTA and the recipient. conduct random safety inspections at inspection or audit at hand, or if FTA FTA agrees with those commenters any time without notice or coordination would be able to direct agency-wide who suggested that FTA and its with a rail transit agency could recordkeeping and reporting practices at designees comply with a recipient’s consequently divert critical staff any time. safety and training protocols and resources away from operations or requirements. FTA will coordinate with FTA Response: General maintenance activities or interfere with recipients to ensure its activities are the smooth functioning of daily transit FTA appreciates those commenters carried out in a safe manner. In operations. who responded to our request for addition, when FTA conducts safety Commenters also asked whether FTA comment on how ‘‘reasonable time’’ and activities at a rail transit agency, FTA would delegate its authority to carry out ‘‘reasonable manner’’ should be defined will coordinate with the relevant SSOA this section to an SSOA. Similarly, a for the purpose of FTA entering into and as necessary and to the extent commenter stated that since SSOAs and inspecting equipment, facilities, rolling practicable. However, it may not always FTA are safety oversight partners, there stock, operations and relevant records. be feasible for an FTA representative to should be a mechanism for FTA to work Upon consideration of the comments, undergo agency-specific training or with an SSOA and factor SSOA findings FTA has decided not to define verify his or her training to a recipient into any FTA enforcement action. The ‘‘reasonable time’’ or ‘‘reasonable before conducting safety activities on commenter recommended that there manner’’ in regulatory text. FTA does behalf of FTA under this rule. should be a detailed process for not believe that narrowly defining In general, FTA disagrees with those monitoring corrective actions between ‘‘reasonable time and manner’’ would commenters who suggested that FTA FTA and SSOAs. enable FTA to sufficiently oversee the provide more prescriptive processes. FTA also received comments safety of our Nation’s transit systems. FTA believes that a certain level of regarding how this section aligned with For instance, there are a number of flexibility is necessary in order for the FTA’s available online SMS Awareness scenarios that may require FTA to enter agency to effectively administer the training. One commenter noted, and into and inspect a recipient’s property Safety Program. For example, FTA does asked for an explanation of, an apparent with minimal notification. not believe that it should be limited to discrepancy between FTA’s SMS Accordingly, under the final rule, the only engaging in activities under this Awareness training, which specifically Administrator has discretion in section upon the consent of a recipient. says that investigations are not a determining what amounts to a To do so would be unreasonable, function of SMS, and the NPRM, which reasonable time and manner, on a case- considering there will likely be indicates that the inspections, by-case basis. FTA believes it should occasions when inspections and investigations, audits, examinations and have flexibility with regard to how it investigations are required when FTA testing are directly a part of an SMS will notify a recipient. Thus, the becomes aware of an accident. In approach. medium utilized to convey notice addition, FTA does not agree with Several commenters noted that the should not be limited by regulatory text. commenters who suggested that FTA SMS reviews and audits should be part FTA will use reasonable means of formally establish a schedule for of the triennial or state management communication to include telephonic conducting activities under this section reviews, unless there has been an and electronic media. FTA will work or that FTA align its activities under accident that the National with transit systems and appropriate this section with existing audit Transportation Safety Board (NTSB) is State entities to ensure that adequate processes. FTA may establish a formal investigating. These commenters notice is provided so that Federal schedule for conducting activities under recommended that FTA define the personnel do not unduly impede this section in the future, but a schedule specific types of incidents or complaints operations. is not appropriate for this rule. that could result in an FTA audit or FTA does not agree with those In exercising its enhanced statutory investigation. Another commenter commenters who indicated that a host authority for safety oversight, FTA suggested that FTA state the frequency agency should be able to place recognizes the critical role of State and it proposes to inspect, audit or perform limitations on FTA’s exercise of its local safety oversight partners. To that a ‘‘compliance assessment’’ of each statutory authority when conducting end, FTA will work with SSOA and property. This commenter also compliance activities associated with transit system personnel to recommended that for efficiency this rule. Further, FTA does not agree accommodate operational and staffing purposes, FTA’s inspection cycle with commenters who suggested that it challenges that may occur as it exercises should correspond with the SSOA should prescribe through regulation its authority. However, FTA does not triennial reviews of local rail transit how and when it would conduct safety agree that it should delegate its operators. Commenters stated that if a inspections, investigations, audits, authority to the SSOAs. In response to property is undertaking a robust SMS, examinations and testing. FTA’s actions the comment regarding SMS Awareness then the FTA assessment cycle should will be based on consideration of training, FTA notes that implementation be longer. For clarity, commenters particular sets of facts. FTA does not of SMS principles in no way contradicts recommended that FTA include believe that limiting the scope of the or conflicts with its authority to engage language which describes the new actions it has the authority to take via in inspections, investigations, or other compliance assessments contemplated rulemaking contributes to improving regulatory compliance processes. by this rulemaking, and describes how public transportation safety. Relatedly, One commenter asked whether the they will correspond with existing FTA does not believe it is appropriate proposed provision to impose more oversight programs and grant to define through regulation its role, frequent reporting requirements applied management procedures. responsibilities, and authority in the to documents requested for purposes of With regard to proposed section inspecting, investigating, auditing, an audit or inspection, or if FTA would 670.11(b), commenters queried whether examining, and testing of a public be able to direct agency-wide the prescription of ‘‘recordkeeping and transportation system’s equipment, recordkeeping and reporting practices at
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any time. As proposed, FTA could protection, and that the language of the decision by the Administrator to deny a impose more frequent reporting proposed rule was not sufficient to confidentiality request. Commenters requirements that would not necessarily prevent documents from being recommended that a final rule provide be tied to an audit or inspection. FTA discovered in a civil action or being a reasonable appeal mechanism for maintained this provision in the final disclosed in response to a public transit agencies that disagree with the rule without substantive change. records request at the State level. Administrator’s decision to release FTA made a few nonsubstantive, Commenters suggested that FTA should records. Other commenters clarifying edits to this section in the recognize that States are unable to afford recommended that the minimum final rule. In addition, FTA eliminated transit agencies this protection, even if amount of time given to an agency to the 30-day response timeframe for FTA determines a record is confidential. respond to an FTA denial of document requests because there may The commenters recommended that confidential treatment should be be instances where FTA needs FTA provide protection for any changed to at least 10 days, due to the requested information more quickly. sensitive or confidential information, harm that such release could cause. Also, as stated above, FTA refined the and ensure that Federal confidentiality FTA Response: Request for Confidential notice provision in this section to supersedes any State disclosure Treatment of Records provide that the Administrator will requirements. decide on a case-by-case basis what Another commenter asked that FTA To clarify, the proposed ‘‘reasonable time and manner’’ would be describe the objective process FTA confidentiality provision was not for FTA to enter into and inspect or test would use to determine if records are intended to protect information from equipment, facilities, rolling stock, subject to public disclosure. One public disclosure. The provision was operations, and relevant records. commenter was concerned that a intended to provide recipients with the recipient may use the provision to opportunity to alert FTA of the alleged 670.13 Request for Confidential report directly to FTA and bypass and confidentiality of a requested record. Treatment of Records withhold information from its SSOA, Unlike other Federal safety regulatory This section proposed procedures for which is obligated (as a State/local agencies, FTA does not have statutory a recipient to request confidential agency) under State law to disclose any authority to protect safety-related treatment of any record filed with or investigative reports or safety information. However, under the State otherwise provided to FTA in information. Safety Oversight (SSO) rules at 49 CFR connection with its administration of A few commenters expressed concern 674.27(a)(7), an SSOA’s program the Safety Program. that FTA proposed to reserve the right standard must include procedures for Comments: Request for Confidential to make its own final determination of protecting the confidentiality of Treatment of Records whether a confidentiality request would investigation reports. be granted. Commenters asked for Documents submitted to FTA are Many commenters questioned the clarification on the circumstances under subject to FOIA and are generally authority by which FTA would be able which FTA would not keep records releasable to the public upon request. to protect information it received from confidential, as requested. The FTA may maintain the confidentiality of recipients from public disclosure. commenters also stated such authority accident investigations, incident Commenters asked how FTA would to make final determinations would reports, and other safety-related ensure the integrity of confidential overrule existing State laws and information to the maximum extent information during all phases of the authorities, as well as Sensitive Security permitted under Federal law, including reporting and information retention Information (SSI) guidelines. the nine exemptions under FOIA. FTA process. A few commenters stated that One large transit agency commented will evaluate whether or not a document the proposed regulatory text was that 18 U.S.C. 1905 applies only to may be withheld from public disclosure insufficient to provide automatic Federal employees or Federal agencies, under the Department of blanket protection for any information and not to transit agencies since they are Transportation’s FOIA rules at 49 CFR pertaining to public safety or that is not Federal entities. The commenter part 7. safety-critical or safety-sensitive. suggested that this section should FTA agrees that its confidential Several commenters stated that FTA’s therefore include clarification that the treatment of information would not proposed confidentiality clause would disclosure provisions of 18 U.S.C. 1905 preempt State law; therefore, recipients add nothing to existing law, and only will apply to transit agencies that should exercise their use of this narrow the exemption window through submit records pursuant to a request for provision accordingly. overly technical requirements which confidentiality, even though they are FTA made nonsubstantive, clarifying would allow automatic full disclosure of not Federal entities. Another commenter edits to this section in the final rule. potentially security sensitive stated that since an agency is required Subpart C Enforcement information if a transit agency to submit any record for which it is accidentally neglects to submit the seeking confidential status, the act of 670.21 General correct format. that submittal destroys or constitutes a This section of the NPRM set forth the A few commenters suggested that waiver of a transit agency’s right to Administrator’s enforcement authorities FTA clarify that the Freedom of confidentiality of records for which it under 49 U.S.C. 5329. Information Act (FOIA) exemptions claims attorney-client or work product In general, FTA’s responses to apply to all recipients, whether or not privilege. The commenter suggested that comments received on this section are they are subject to FOIA. One a transit agency could instead provide addressed in other sections throughout commenter further noted FTA should pertinent information regarding date, the preamble. For example, comments explicitly recognize confidentiality time, location and a brief explanation of related to reporting requirements are provisions under other FOIA-like the basis for asserting attorney-client or addressed in the response to comments policies that are adopted by transit work product privilege. under section 670.11, above. Responses agencies. However, a number of Several commenters suggested that to comments related to withholding of commenters asserted that State law FTA allow a transit agency 30 working funds immediately follow this section, could overrule Federal confidentiality days to evaluate and respond to a below.
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FTA has made two changes to this exercises enforcement authority for a sufficient process for a transit agency section as a result of FAST Act safety. to appeal an erroneous notice of amendments made to 49 U.S.C. 5329. violation, which could result in a Comments: Use or Withholding of First, FTA revised section 670.21(e) to significant loss of funding. One Funds limit withholding of a recipient’s 49 commenter further stated that U.S.C. 5307 funds to no more than Many commenters expressed concern withholding of funds should be twenty-five (25) percent. Second, FTA about the potential loss of Federal considered only after consultation with added a new section 670.21(g) to funding as a result of safety violations, the SSOA and after a rail transit agency explicitly incorporate into this rule as many safety violations may be due to has been given ample opportunity to FTA’s authority to issue restrictions and preexisting and chronic address the safety concern and respond prohibitions on a recipient’s operations, underinvestment, with any loss of to FTA. One commenter suggested that if through testing, inspection, funding resulting in a worsening of FTA should not withhold funding from investigation, audit or research the transit agencies’ financial situations and a recipient who corrects an identified Administrator determines that an unsafe greater safety deficiencies. In addition, deficiency by implementing FTA’s condition or practice, or a combination several commenters stated that the required remedial action and mitigates of unsafe conditions and practices, exist connection between States, SSOAs and the deficiency within the 90 days such that there is a substantial risk of transit agencies was unclear, and that following the initial notice of violation. death or personal injury. The language the NPRM did not explain how a State Some commenters stated that because in the rule is identical to the language would be held responsible for a safety of the similarities between this section in the statute. Further, the proposed rule deficiency at a transit agency. These and section 670.27, special directives included the authority for FTA to issue commenters asked that the rule clarify should be invoked as a remedy for special directives in the event an unsafe what is meant by a State, and to clearly program deficiencies before withholding practice or condition caused an differentiate how the notification, funds, and that this sequence should be emergency situation involving a hazard appeal, and withholding actions and clearly required in the rule. Another of death, personal injury, damage to procedures would affect the various commenter requested that section property or equipment, or significant entities. 670.23 be incorporated into section One commenter stated that SSOAs harm to the environment. The authority 670.27, due to its more developed should not be subject to this section under new section 670.21(g) may be appeal process, so that transit agencies because, although the definition of considered a specific type of special would have more recourse in the case of ‘‘recipient’’ in section 670.5 implies directive, applicable in certain an FTA decision to withhold funding. inclusion of SSOAs, the description of circumstances, and thus is materially Several commenters asked what actual affected entities throughout the would happen if FTA failed to adhere related to FTA’s proposal to issue NPRM instead suggests only public to the established 30-day decision special directives. Moreover, FTA finds transit agencies. The commenter timeline under section 670.23(b)(3) and good cause to include reference to its suggested that SSOA funding be queried whether the violation would be authority to issue restrictions and excluded from the definition of automatically dismissed if the deadline prohibitions in the final rule. In the ‘‘recipient’’ under section 670.5. passed or whether FTA would be NPRM, section 670.21(a)–(f) included a Several commenters expressed subject to consequences for missing the list of the authorities provided to FTA concern that funding could be withheld deadlines. One commenter stated that by Congress in MAP–21 to carry out the from the entire State or SSOA, due to an FTA decision to redirect or withhold Safety Program. In this final rule, FTA the action (or inaction) of a single funds amounts to an unfunded mandate. has added a new subsection 670.21(g) subrecipient, thus penalizing all the which merely adds to the list of subrecipients in the State. The FTA Response: Use or Withholding of authorities provided to FTA under commenters asked that FTA add Funds MAP–21, to reflect the authority to issue language to section 670.23 to either FTA understands that many transit restrictions and prohibitions that was explain the rationale and process for operators, especially smaller transit added under the FAST Act. holding a State liable for the operators, have limited financial Accordingly, FTA has ‘‘good cause’’ deficiencies of a particular transit resources. However, FTA believes that under the Administrative Procedure Act agency, or add language which would the decision to withhold funds should (5 U.S.C. 553(b)) to finalize these limit enforcement actions to the be at the discretion of the FTA provisions at this time because particular subrecipient instead of the Administrator, in consideration of the additional public comment is entire State. Similarly, one commenter nature and severity of the safety ‘‘unnecessary’’ as the rule merely stated that there should be a process to violation at issue. FTA may consult restates the statutory provision. ensure that a rail transit agency in one with an SSOA before withholding any 670.23 Use or Withholding of Funds State does not cause FTA to withhold funding or issuing a violation to a rail chapter 53 funds from an SSOA or rail transit agency. However, FTA does not This section proposed procedures for transit agency in another State. believe that it needs to prescribe such a FTA to direct the use of Chapter 53 Several commenters stated that process in regulatory text. funds where safety deficiencies are section 670.23(b)(3) only allows, but FTA will not hold an SSOA directly identified by the Administrator or an does not compel, FTA to consider a accountable for a safety deficiency at a SSOA. This section also proposed recipient’s response to a notice of rail transit agency. However, FTA may procedures for withholding of Chapter violation. Commenters suggested that hold an SSOA accountable for failing to 53 funds from a recipient or State for FTA should have to consider a adequately oversee a rail transit system. non-compliance, where the recipient’s response to a notice of Accordingly, FTA does not believe that Administrator determines that there has violation. These commenters also stated SSOAs should be excluded from this been a pattern or practice of serious that this section did not adequately rule. FTA agrees that all subrecipients violations of the Safety Program or any provide an opportunity for notice and in a State should not be held regulation or directive issued under comment. In addition, commenters accountable for one subrecipient’s those laws for which the Administrator stated that this section did not provide actions, and we have removed the word
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‘‘State’’ from 670.23(c)(ii). FTA will not commenter stated that there was no FTA Response: General Directives and withhold funds from a rail transit process identified for FTA to notify a Special Directives agency because of a safety issue related recipient in a timely way that its Intentionally, FTA did not define to another rail transit agency. response to a directive is satisfactory, specific circumstances that would In the NPRM, FTA proposed a process which could delay a recipient’s trigger FTA to take one action over for a recipient to respond to a notice of implementation of a corrective action another or prescribe specific timeframes violation. FTA proposed to issue a and put the transit system in a position that a recipient would need to comply response to the recipient within 30 days of increased liability or undermine with either a general or special of its receipt of the recipient’s response. public confidence. One commenter directive. As stated above, an FTA has changed ‘‘may’’ to ‘‘shall’’ to noted that State and local agencies enforcement action that may be indicate the Administrator will consider would need time to implement a general appropriate to address one recipient’s a recipient’s response. FTA intends to or special directive and recommended safety issue may not be appropriate to make a decision within 30 days of that FTA provide a time period for address the same issue at another receiving a response from a recipient, implementation. but FTA will not automatically dismiss Several commenters noted that the recipient’s transit system. FTA’s violations if it misses the deadline. processes for responding to or appealing recipients range in diversity of mode, FTA’s enforcement tools under the the FTA Administrator’s decisions operating environment, sophistication, Safety Program include directing the use under part 670 are inconsistent expertise and resources. FTA believes of funds, withholding funds, and depending on whether it is a general that it is important to establish and issuing directives. Intentionally, FTA directive, a special directive, or a implement the Safety Program in a did not define specific circumstances withholding of funds. One commenter manner that is both scalable and that would trigger FTA to take one suggested that FTA devote one section flexible. action over another or prescribe specific solely to responding to or appealing the In section 670.25, FTA proposed to timeframes that a recipient would need Administrator’s decisions. issue general directives that could apply to comply with a special directive. An A number of commenters noted that to all recipients or a subset of recipients enforcement action that may be the rule did not define emergency and that would be effective upon notice appropriate to address one recipient’s situations that might give rise to the provided by the Administrator in the safety issue may not be appropriate to issuance of a general directive. Federal Register. A general directive address the same issue at another Commenters suggested that FTA define would be subject to a public comment recipient’s transit system. FTA’s ‘‘emergency situation.’’ period. Following the public notice and recipients range in diversity of mode, Some commenters stated that FTA did comment period, FTA would publish a operating environment, sophistication, not have the authority to take response to the comments in the expertise and resources. FTA believes it enforcement action because of a Federal Register. The Federal Register is important to establish and implement ‘‘significant harm to the environment.’’ notice also would include a final the Safety Program in a manner that is One commenter requested that FTA iteration of the general directive. both scalable and flexible. FTA does not provide specific details about the Upon further consideration, FTA has agree that requiring that funding be enforcement action that could be taken determined that general directives and redirected or withheld is an unfunded under each section. A commenter asked the Federal Register process are not mandate. how FTA would identify the need for a appropriate means with which to In the final rule, FTA has reorganized general or special directive and how address an emergency situation. this section for clarity. In addition, FTA FTA would ensure that qualified However, FTA believes that providing has revised this section to limit the persons were involved in the notice and an opportunity for comment amount that may be withheld to not development of a directive. through the Federal Register is an more than 25% of section 5307 funds in One commenter noted that under appropriate method of addressing safety accordance with 49 U.S.C. 5329(g). proposed section 670.27(d), a recipient issues that require mitigation, but need would be required to ‘‘observe’’ a not be addressed immediately upon 670.25 General Directives and 670.27 special directive during FTA’s review of notice. Accordingly, under the final Special Directives a petition for reconsideration. The rule, FTA would not use a general In section 670.25, FTA proposed commenter also noted that proposed directive to address an emergency procedures for the issuance of a general section 670.27(f)(4) did not provide a situation. directive by the Administrator. In timeframe from when FTA would make Special directives are the more section 670.27, FTA proposed a decision to when a recipient would be appropriate tool to address emergency procedures for the issuance of a special notified of FTA’s decision, during situations. In the NPRM, FTA proposed directive to one or more named which time a recipient would still be to issue a special directive to one or recipients. required to ‘‘observe’’ the special more named recipients to address a directive. The commenter asked what safety issue specific to the recipient’s Comments: General Directives and ‘‘observe’’ meant and how FTA would transit systems. A special directive Special Directives enforce the provision if a recipient would become effective upon direct FTA received a number of comments could not meet the requirements of a notice from FTA to a recipient. FTA has related to the proposed rule for general special directive. retained the NPRM provisions related to and special directives. Some One commenter suggested that when FTA would issue a special commenters asked for clarifications on petitions for reconsideration should, at directive. the proposed procedures for both types a minimum, be handled by the original FTA agrees with the commenter who of directives. Some comments requested authority, a peer, or a superior suggested that FTA’s Chief Counsel that FTA specify which directives authority, instead of the FTA Chief should not be placed in the position of require general manager and Board Counsel, asserting that the Chief appellate authority over the response, stipulate timelines for Counsel should not be placed in the Administrator. Under this rule, the response due dates, and clarify the position of appellate authority over his Deputy Administrator will issue special notice and appeal processes. One or her Administrator. directives, and the Administrator will
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serve as the final appellate authority for There were a number of comments impose mandatory requirements special directives. Within 90 days of the related to proposed section 670.29(b). In through the use of directives, and receipt of a petition for reconsideration, that section, FTA proposed that the recommendations through the use of the Administrator would either grant or Administrator could take a recipient’s advisories. deny a petition, in whole or in part, and noncompliance with an advisory into FTA does not have the authority to provide notice to a recipient of his or consideration when deciding to take an issue civil penalties. However, FTA her decision. enforcement action. One commenter could issue a directive subsequent to an Because FTA will issue special noted that this section was inconsistent advisory if FTA finds that the hazard or directives when it FTA finds a with SMS. The commenter noted that risk identified in the advisory requires substantial risk of death or personal each agency would determine whether further mitigation. injury, or damage to property or or not the hazard or risk referenced in FTA does not agree that it should equipment, a recipient will be required the advisory was relevant, and if so, submit mere recommendations through to ‘‘observe’’ the actions required under determine an appropriate strategy to the public notice and comment process a special directive while its petition was reduce risk to an acceptable level, or establish another formal process for being reviewed by the Administrator. which could include an alternative issuing an advisory. FTA will notify Within this context, ‘‘observe’’ means mitigation than what was recommended recipients of an advisory by publishing that the recipient must implement the in the advisory. a notice in the Federal Register. FTA requirements under the special directive Some commenters asked whether the will continue to post advisories to its during the review period. FTA will subject matter of an advisory could lead public Web site and incorporate them provide guidance to a recipient on what to the issuance of a special directive. into the National Safety Plan. One commenter asked whether FTA specific steps need be taken to 670.31 Purpose and Content of the planned to issue civil penalties against implement the requirements of the National Public Transportation Safety a recipient which did not comply with special directive during the review Plan period. an advisory, and noted that other U.S. DOT administrations do not assess civil This section described the statutory FTA agrees with commenters who penalties under such circumstances. mandates and proposed components of suggested that FTA not take action Several commenters sought a National Public Transportation Safety under this rule to address a ‘‘significant clarification on the difference between Plan (National Safety Plan). harm to the environment.’’ FTA’s an advisory and a directive. One Comments: National Safety Plan primary goal under the Safety Program commenter suggested that FTA strike is to ensure the safety of passengers and the section on advisories because FTA Several commenters supported FTA’s transit workers. Readers should note, should address unsafe conditions with a proposals for a National Safety Plan. however, that FTA does have the general directive. Some commenters requested additional authority to address environmental information and clarification about the issues related to a public transportation FTA Response: Advisories contents of a National Safety Plan in system that have an impact on In the NPRM, FTA proposed that order to be able to comply with the passenger or worker safety. FTA has advisories would include recommended Plan’s requirements. One commenter revised the final rule to remove the actions. Directives require a recipient to asked how FTA would update a language related to harm to the take mandatory action to mitigate a National Safety Plan and whether each environment. specific safety risk. FTA believes it is update would be subject to notice and 670.29 Advisories important to establish several tools that comment. may be used to address different levels One commenter stated that a National This section described how the of safety risks, from low to high. An Safety Plan must be implemented via Administrator would issue advisories, advisory would be used to address rulemaking if SSOAs would be expected which would recommend corrective lower level safety risks or in situations to ensure that rail transit agencies are actions to resolve or mitigate an unsafe where FTA lacks sufficient data to complying with the Plan. The condition. accurately assess the risk. commenter stated that a National Safety Comments: Advisories Commenters were accurate in their Plan should not be updated periodically assertions that ‘‘compliance’’ with an because any changes may require an Several commenters noted that, as advisory would be at a recipient’s SSOA to establish new rules, which proposed, compliance by a recipient discretion. FTA agrees that each agency would be cumbersome, time consuming with an advisory would be should determine whether or not the and expensive. Further, the commenter discretionary. Commenters also noted hazard or risk addressed in an advisory noted that many small transit providers that advisories issued by other Federal is relevant to its system and determine adopt rules, policies and safety plans agencies are not discretionary and appropriate mitigations. Due to the through Board actions. Therefore, if a include required actions. Accordingly, a nature of an advisory, a recipient need National Safety Plan is changed commenter suggested that FTA use not ‘‘comply’’ with an advisory, but periodically, transit agencies would ‘‘bulletin’’ instead of ‘‘advisory.’’ instead would decide whether or not to need several months to comply with any Commenters asked why FTA did not adopt the recommended actions. changes, and to allow an opportunity for propose to submit an advisory to a Accordingly, FTA has revised this comment. public notice and comment process section in the final rule to remove the One commenter requested that FTA similar to what was proposed for a language stating that the Administrator coordinate the development of safety general directive. One commenter would take a recipient’s noncompliance criteria and standards with the other recommended that FTA establish a with an advisory into consideration U.S. DOT modal administrations, such formal process for issuing advisories. when taking enforcement actions. FTA as the FRA, to avoid conflicting Several commenters requested is aware that other Federal agencies use standards. One commenter encouraged clarification on how an advisory would advisories to impose mandatory FTA to coordinate with transit agencies be issued and whether a recipient requirements on their regulated in the development of standards and would have an opportunity to respond. communities. FTA has elected to criteria. The commenter suggested that
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a National Safety Plan include a In the NPRM, FTA proposed the budgetary impact of any entitlements, description of safety outcomes and initial contents of a National Safety grants, user fees, or loan programs. goals, and methods for identifying risks Plan. The list of proposed contents was Regulatory Flexibility Act and targeting priorities to achieve safety not exhaustive. On February 5, 2016, goals. FTA published its first proposed In compliance with the Regulatory Several commenters noted that it was National Safety Plan for public notice Flexibility Act (Pub. L. 96–354; 5 U.S.C. difficult to comment on a National and comment. See 81 FR 6372. The 601–612), FTA has evaluated the likely Safety Plan because FTA had not proposed Plan includes four safety effects of the rule on small entities, and published final rules for other performance criteria, an SMS has determined that they will not have components of the Public implementation guide, and other a significant economic impact on a Transportation Safety Program. Some guidance. The proposed Plan also substantial number of small entities. commenters requested additional includes proposed voluntary standards. Unfunded Mandates Reform Act of information from FTA on the nexus FTA will coordinate with relevant U.S. 1995 between state of good repair and safety. DOT modal administrations and the This rule will not impose unfunded One commenter suggested that FTA transit industry in the adoption of any mandates as defined by the Unfunded adopt the framework for a National mandatory standards. In addition, the Mandates Reform Act of 1995 (Pub. L. Safety Plan that was recommended by proposed Plan discusses safety 104–4; 109 Stat. 48). the Transit Advisory Committee for outcomes and goals, the nexus between Safety (TRACS). The commenter noted state of good repair and safety, Executive Order 13132 (Federalism) that the proposed rule included a few of pedestrian and bicycle safety, and the role of TRACS. The comment period for FTA has analyzed this rule in the TRACS recommendations, but accordance with the principles and would benefit from a more detailed the proposed Plan closed on April 5, 2016, and FTA expects to publish its criteria established by Executive Order description of the necessary elements 13132, and determined that this rule that contribute to a more robust first National Safety Plan in the near future. will not have sufficient Federalism framework. implications to warrant the preparation Several commenters suggested other FTA revised this section in the final of a Federalism assessment. FTA has issues that FTA should address in a rule to reflect changes to 49 U.S.C. also determined that this rule will not National Safety Plan, including 5329(b) as amended by the FAST Act, preempt any State law or State employee issues such as driver assaults, which require a National Safety Plan to regulation or affect the States’ abilities restroom breaks, and blind spots. To include standards to ensure the safe to discharge traditional State ensure the safety of transit operators, a operation of transit systems. governmental functions. Moreover, commenter recommended that a IV. Regulatory Analyses and Notices consistent with Executive Order 13132, National Safety Plan require that buses FTA has determined that the rule does be equipped with clear plastic Executive Order 12866 and 13563; not impose direct compliance costs on partitions, a driver side door or window, USDOT Regulatory Policies and State and local governments. and an emergency alarm. A commenter Procedures also recommended that a National Executive Order 12372 Safety Plan require increased use of Executive Orders 12866 and 13563 (Intergovernmental Review) direct Federal agencies to assess all wayside fare collection, which the The regulations effectuating Executive commenter suggested is a safer means to costs and benefits of available regulatory alternatives and, if regulation is Order 12372 regarding collect payment. Another commenter intergovernmental consultation on stated that a National Safety Plan must necessary, to select regulatory approaches that maximize net benefits— Federal programs and activities apply to address blind spots, which make safe this rulemaking. operation of transit buses difficult. including potential economic, Other commenters suggested that a environmental, public health and safety Paperwork Reduction Act National Safety Plan address pedestrian effects, distributive impacts, and equity. This rulemaking will not impose and bicycle safety. Also, Executive Order 13563 additional collection requirements emphasizes the importance of FTA Response: National Safety Plan under the Paperwork Reduction Act of quantifying both costs and benefits, 1995, 44 U.S.C. 3501, et seq., or the FTA intends for the National Safety reducing costs, harmonizing rules, and OMB regulation at 5 CFR 1320.8(d). To Plan to serve as both the primary tool promoting flexibility. As stated above, the extent that there are any costs and for FTA to communicate with the transit FTA does not believe that this rule burdens associated with any collections industry about its safety performance, imposes direct costs on entities other under this rule, the information and as a repository of guidance, best than FTA. collection will be incorporated into the practices, technical assistance, tools and FTA has determined this rulemaking rulemakings for Public Transportation other information. FTA believes that a is a nonsignificant regulatory action Agency Safety Plans, State Safety flexible approach to implementing a within the meaning of Executive Order Oversight, and the Safety Certification National Safety Plan would be the most 12866 and is nonsignificant within the Training Program. effective way to disseminate meaning of the U.S. Department of information. Therefore, FTA intends to Transportation’s regulatory policies and National Environmental Policy Act publish proposed substantive updates to procedures. FTA has determined that The National Environmental Policy the National Safety Plan, such as new this rulemaking is not economically Act of 1969, 42 U.S.C. 4321, et seq., performance criteria, for public notice significant. The rule will not result in an requires Federal agencies to analyze the and comment, but does not believe that effect on the economy of $100 million potential environmental effects of their the National Safety Plan needs to be a or more. The rule will not adversely proposed actions in the form of a rule. FTA will incorporate guidance, affect the economy, interfere with categorical exclusion, environmental technical assistance, and other tools into actions taken or planned by other assessment, or environmental impact the Plan as they become available. agencies, or generally alter the statement. This rule is categorically
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excluded under FTA’s environmental Executive Order 12988 (February 5, Federal Regulations. The Regulatory impact procedure at 23 CFR 1996), Civil Justice Reform, to minimize Information Service Center publishes 771.118(c)(4), pertaining to planning litigation, eliminate ambiguity, and the Unified Agenda in April and and administrative activities that do not reduce burden. October of each year. The RIN set forth involve or lead directly to construction, in the heading of this document can be Executive Order 13045 (Protection of such as the promulgation of rules, used to cross-reference this action with Children) regulations, and directives. FTA has the Unified Agenda. determined that no unusual FTA has analyzed this rule under circumstances exist in this instance, and Executive Order 13045 (April 21, 1997), List of Subjects in 49 CFR Part 670 that a categorical exclusion is Protection of Children from Public Transportation, Safety. appropriate for this rulemaking. Environmental Health Risks and Safety Issued in Washington, DC, under authority Risks. FTA certifies that this rule will Executive Order 12630 (Taking of delegated in 49 CFR 1.91. not cause an environmental risk to Private Property) Carolyn Flowers, health or safety that may Acting Administrator. This rulemaking will not affect a disproportionately affect children. taking of private property or otherwise For the reasons set forth in the have taking implications under Executive Order 13175 (Tribal preamble, and under the authority of 49 Executive Order 12630 (March 15, Consultation) U.S.C. 5329(f)(7), and the delegations of 1998), Governmental Actions and FTA has analyzed this action under authority at 49 CFR 1.91, FTA hereby Interference with Constitutionally Executive Order 13175 (November 6, amends Chapter VI of Title 49, Code of Protected Property Rights. 2000), and believes that it will not have Federal Regulations, by adding part 670 as set forth below: Executive Order 12898 (Federal Actions substantial direct effects on one or more To Address Environmental Justice in Indian tribes; will not impose substantial direct compliance costs on PART 670—PUBLIC Minority Populations and Low-Income TRANSPORTATION SAFETY Populations) Indian tribal governments; and will not preempt tribal laws. Therefore, a tribal PROGRAM Executive Order 12898 (February 8, summary impact statement is not 1994) directs every Federal agency to required. Subpart A—General Provisions make environmental justice part of its Sec. mission by identifying and addressing Executive Order 13211 (Energy Effects) 670.1 Purpose and applicability. the effects of all programs, policies, and FTA has analyzed this rule under 670.3 Policy. activities on minority populations and Executive Order 13211, Actions 670.5 Definitions. low-income populations. The USDOT Concerning Regulations That Subpart B—Inspections, Investigations, environmental justice initiatives Significantly Affect Energy Supply, Audits, Examinations, and Testing accomplish this goal by involving the Distribution, or Use (May 18, 2001). 670.11 General. potentially affected public in FTA has determined that this action is 670.13 Request for confidential treatment of developing transportation projects that not a significant energy action under the records. fit harmoniously within their Executive Order, given that the action is Subpart C—Enforcement communities without compromising not likely to have a significant adverse safety or mobility. Additionally, FTA effect on the supply, distribution, or use 670.21 General. has issued a program circular of energy. Therefore, a Statement of 670.23 Use or withholding of funds. 670.25 General directives. addressing environmental justice in Energy Effects is not required. public transportation, C 4703.1, 670.27 Special directives. 670.29 Advisories. ‘‘Environmental Justice Policy Guidance Privacy Act for Federal Transit Administration Anyone is able to search the Subpart D—National Public Transportation Recipients.’’ This circular provides a electronic form of all comments Safety Plan framework for FTA grantees as they received into any of FTA’s dockets by 670.31 Purpose and contents of the integrate principles of environmental the name of the individual submitting National Public Transportation Safety justice into their transit decision-making the comment or signing the comment if Plan. processes. The Circular includes submitted on behalf of an association, Authority: 49 U.S.C. 5329, 49 CFR 1.91. recommendations for State Departments business, labor union, or any other of Transportation, Metropolitan entity. You may review USDOT’s Subpart A—General Provisions Planning Organizations, and public complete Privacy Act Statement transportation systems on how to: (1) published in the Federal Register on § 670.1 Purpose and applicability. Fully engage environmental justice April 11, 2000, at 65 FR 19477–8. This part carries out the mandate of populations in the transportation 49 U.S.C. 5329 to improve the safety of Statutory/Legal Authority for This decision-making process; (2) determine public transportation systems. This part Rulemaking whether environmental justice establishes substantive and procedural populations would be subjected to This rulemaking is issued under the rules for FTA’s administration of the disproportionately high and adverse authority of 49 U.S.C. 5329(f)(7), which Public Transportation Safety Program. human health or environmental effects authorizes the Secretary to issue rules to This part applies to recipients of Federal of a public transportation project, carry out the mandate for a Public financial assistance under 49 U.S.C. policy, or activity; and (3) avoid, Transportation Safety Program at 49 chapter 53. minimize, or mitigate these effects. U.S.C. 5329. § 670.3 Policy. Executive Order 12988 (Civil Justice Regulation Identification Number The Federal Transit Administration Reform) A Regulation Identification Number (FTA) has adopted the principles and This action meets the applicable (RIN) is assigned to each regulatory methods of Safety Management Systems standards in sections 3(a) and 3(b)(2) of action listed in the Unified Agenda of (SMS) as the basis for enhancing the
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safety of public transportation in the Inspection means a physical examinations, and test the equipment, United States. FTA will follow the observation of equipment, facilities, facilities, rolling stock and operations of principles and methods of SMS in its rolling stock, operations, or records for a recipient’s public transportation development of rules, regulations, the purpose of gathering or analyzing system. policies, guidance, best practices and facts or information. (b) To the extent practicable, the technical assistance administered under Investigation means the process of Administrator will provide notice to a the authority of 49 U.S.C. 5329. determining the causal and contributing recipient prior to initiating any factors of an accident, incident or activities carried out under the § 670.5 Definitions. hazard for the purpose of preventing authorities listed in paragraph (a) of this As used in this part: recurrence and mitigating risk. section. Accountable Executive means a National Public Transportation Safety (c) The Administrator will conduct single, identifiable individual who has Plan means the plan to improve the activities carried out under this section ultimate responsibility for carrying out safety of all public transportation at reasonable times and in a reasonable the Public Transportation Agency Safety systems that receive Federal financial manner, as determined by the Plan of a public transportation agency; assistance under 49 U.S.C. Chapter 53. Administrator. responsibility for carrying out the Pattern or practice means two or more (d) In carrying out this section, the agency’s Transit Asset Management findings by FTA of a recipient’s Administrator may require the Plan; and control or direction over the violation of the requirements of 49 production of relevant documents and human and capital resources needed to U.S.C. 5329 or the regulations records, take evidence, issue subpoenas develop and maintain both the agency’s thereunder. and depositions, and prescribe Public Transportation Agency Safety Recipient means a State or local recordkeeping and reporting Plan in accordance with 49 U.S.C. governmental authority, or any other requirements. 5329(d), and the agency’s Transit Asset operator of public transportation that Management Plan in accordance with 49 receives financial assistance under 49 § 670.13 Request for confidential treatment of records. U.S.C. 5326. U.S.C. Chapter 53. The term ‘‘recipient’’ Administrator means the Federal includes State Safety Oversight (a) The Administrator may grant a Transit Administrator or his or her Agencies. recipient’s request for confidential designee. Record means any writing, drawing, treatment of records produced under Advisory means a notice that informs map, recording, diskette, DVD, CD– § 670.11, on the basis that the records or warns a recipient of hazards or risks ROM, tape, film, photograph, or other are— to the recipient’s public transportation documentary material by which (1) Exempt from the mandatory system. An advisory may include information is preserved. The term disclosure requirements of the Freedom recommendations for avoiding or ‘‘record’’ also includes any such of Information Act (5 U.S.C. 552); mitigating the hazards or risks. documentary material stored (2) Required to be held in confidence Audit means a review or analysis of electronically. by 18 U.S.C. 1905; or records and related materials, including, Risk means the composite of (3) Otherwise exempt from public but not limited to, those related to predicted severity and likelihood of the disclosure under Federal or State laws. financial accounts. potential effect of a hazard. (b) A recipient must submit the record Corrective action plan means a plan Safety Management System (SMS) that contains the alleged confidential developed by a recipient that describes means a formal, top-down, organization- information with the request for the actions the recipient will take to wide data-driven approach to managing confidential treatment. minimize, control, correct or eliminate safety risk and assuring the effectiveness (c) A recipient’s request for risks and hazards, and the schedule for of a recipient’s safety risk mitigations. confidential treatment must include a taking those actions. Either a State SMS includes systematic procedures, statement justifying nondisclosure and Safety Oversight Agency of FTA may practices and policies for managing provide the specific legal basis upon require a recipient to develop and carry risks and hazards. which the request for nondisclosure out a corrective action plan. State means a State of the United should be granted. Deputy Administrator means the States, the District of Columbia, Puerto (d) A recipient’s justification Federal Transit Deputy Administrator or Rico, the Northern Mariana Islands, statement must indicate whether the his or her designee. Guam, American Samoa, and the Virgin recipient is requesting confidentiality Directive means a written Islands. for the entire record, or whether non- communication from FTA to a recipient State Safety Oversight Agency means confidential information in the record that requires the recipient to take one or an agency established by a State that can be reasonably segregated from the more specific actions to ensure the meets the requirements and performs confidential information. If a recipient safety of the recipient’s public the functions specified by 49 U.S.C. is requesting confidentiality for only a transportation system. 5329(e) and the regulations set forth in portion of the record, the request must Examination means a process for 49 CFR part 659 or 49 CFR part 674. include a copy of the entire record and gathering or analyzing facts or Testing means an assessment of a second copy of the record where the information related to the safety of a equipment, facilities, rolling stock or purportedly confidential information public transportation system. operations of a recipient’s public has been redacted. The Administrator FTA means the Federal Transit transportation system. may assume there is no objection to Administration. public disclosure of the record in its Hazard means any real or potential Subpart B—Inspections, entirety if the requestor does not submit condition that can cause injury, illness, Investigations, Audits, Examinations a second copy of the record with the or death; damage to or loss of the and Testing confidential information redacted at the facilities, equipment, rolling stock, or time that the request is submitted. infrastructure of a recipient’s public § 670.11 General. (e) A recipient must mark any record transportation system; or damage to the (a) The Administrator may conduct containing any information for which environment. investigations, inspections, audits and confidential treatment is requested as
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follows—‘‘CONFIDENTIAL’’ or (2) A statement of the regulatory (3) A statement of the time within ‘‘CONTAINS CONFIDENTIAL provisions or directives FTA believes which written comments must be INFORMATION’’ in bold letters. the recipient has violated; received by FTA. (f) The Administrator will provide (3) A statement of the remedial action (d) Consideration of comments notice to a recipient of his or her sought to correct the violation; and received. The Administrator will decision to approve or deny a request, (4) A statement of facts supporting the consider all timely comments received. in whole or in part, no less than five (5) proposed remedial action. Late filed comments will be considered days prior to the public disclosure of a to the extent practicable. (d) Reply. Within thirty (30) days of record by FTA. The Administrator will (e) Final notice. After consideration of service of a notice of violation, a provide an opportunity for a recipient to timely comments received, the recipient may file a written reply with respond to his or her decision prior to Administrator will publish a notice in the Administrator. Upon receipt of a the public disclosure of a record. the Federal Register that includes both written request, the Administrator may a response to comments and a final extend the time for filing for good cause Subpart C—Authorities general directive or a statement shown. The reply must be in writing, rescinding, revising, revoking or § 670. 21 General. and signed by the recipient’s suspending the directive. In addition to actions described in Accountable Executive or equivalent §§ 670.23 through 670.29, in exercising entity. A written reply may include an § 670.27 Special directives. his or her authority under this part, the explanation for the alleged violation, (a) General. The Deputy Administrator may— provide relevant information or Administrator may issue a special (a) Require more frequent oversight of materials in response to the alleged directive under this part to one or more a recipient by a State Safety Oversight violation or in mitigation thereof, or named recipients for the following Agency that has jurisdiction over the recommend alternative means of reasons— recipient; compliance for consideration by the (1) The Deputy Administrator has (b) Impose requirements for more Administrator. reason to believe that a recipient is frequent reporting by a recipient; (e) Decision. The Administrator will (c) Order a recipient to develop and engaging in conduct, or there is issue a written decision within thirty carry out a corrective action plan; and evidence of a pattern or practice of a (d) Issue restrictions and prohibitions, (30) days of his or her receipt of a recipient’s conduct, in violation of the if through testing, inspection, recipient’s reply. The Administrator Public Transportation Safety Program or investigation, audit or research carried shall consider a recipient’s response in any regulation or directive issued under out under Chapter 53, the Administrator determining whether to dismiss the those laws for which the Administrator determines that an unsafe condition or notice of violation in whole or in part. exercises enforcement authority for practice, or a combination of unsafe If a notice of violation is not dismissed, safety; conditions and practices, exist such that the Administrator may undertake any (2) The Deputy Administrator there is a substantial risk of death or other enforcement action he or she determines that an unsafe condition or personal injury. deems appropriate. practice, or a combination of unsafe conditions and practices exists such that § 670.23 Use or withholding of funds. § 670.25 General directives. there is a substantial risk of death or (a) Directing the use of funds. The (a) General. The Administrator may personal injury, or damage to property Administrator may require a recipient to issue a general directive under this part or equipment; or use Chapter 53 funds to correct safety that is applicable to all recipients or a (3) For any other purpose where the violations identified by the subset of recipients for the following Deputy Administrator determines that Administrator or a State Safety reasons— the public interest requires the Oversight Agency before such funds are (1) The Administrator determines that avoidance or mitigation of a hazard or used for any other purpose. an unsafe condition or practice, or a risk through immediate compliance. (b) Withholding of funds. Except as combination of unsafe conditions and (b) Effective date. A special directive provided under 49 CFR part 674, the practices, exists such that there is a risk is effective upon notice provided by the Administrator may withhold not more of death or personal injury, or damage Deputy Administrator under paragraph than twenty-five (25) percent of funds to property or equipment; or (c) of this section. apportioned under 49 U.S.C. 5307 from (2) For any other purpose where the (c) Notice. The Deputy Administrator a recipient when the Administrator has Administrator determines that the will provide notice to a recipient that is evidence that the recipient has engaged public interest requires the avoidance or subject to a special directive. The in a pattern or practice of serious safety mitigation of a hazard or risk. Deputy Administrator may initially violations, or has otherwise refused to provide notice through telephonic or (b) Effective date. A general directive comply with the Public Transportation electronic communication; however, is effective upon final notice provided Safety Program, as codified at 49 U.S.C. written notice will be served by by the Administrator under paragraph 5329, or any regulation or directive personal service or by U.S. mail (e) of this section. issued under those laws for which the following telephonic or electronic Administrator exercises enforcement (c) Notice. The Administrator will communication. Notice will include the authority for safety. provide notice of a general directive to following information, at minimum— (c) Notice. The Administrator will recipients in the Federal Register. The (1) The name of the recipient or issue a notice of violation that includes notice will include at minimum— recipients to which the directive the amount the Administrator proposes (1) A reference to the authority under applies; to redirect or withhold at least ninety which the directive is being issued; (2) A reference to the authority under (90) days prior to the date from when (2) A statement of the purpose of the which the directive is being issued; and the funds will be redirected or withheld. issuance of the directive, including a (3) A statement of the purpose of the The notice will contain— description of the subjects or issues issuance of the directive, including a (1) A statement of the legal authority involved and a statement of the description of the subjects or issues for its issuance; remedial actions sought; and involved, a statement of facts upon
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which the notice is being issued, a directive, in whole or in part, he or she DEPARTMENT OF COMMERCE statement of the remedial actions being may deny the petition. sought, and the date by which such (4) Notification. The Administrator National Oceanic and Atmospheric remedial actions must be taken. will issue notification to a recipient of Administration (d) Petition for reconsideration. his or her decision. Within thirty (30) days of service of a 50 CFR Part 219 (h) Judicial review. A recipient may notice issued under paragraph (c) of this seek judicial review in an appropriate [Docket No. 150413360–6558–04] section, a recipient may file a petition United States District Court after a final for reconsideration with the RIN 0648–BF02 action of FTA under this section, as Administrator. Unless explicitly stayed provided in 5 U.S.C. 701–706. or modified by the Administrator, a Taking and Importing Marine special directive will remain in effect § 670.29 Advisories. Mammals; Taking Marine Mammals and must be observed pending review of Incidental to Northeast Fisheries a petition for reconsideration. Any such In any instance in which the Science Center Fisheries Research petition: Administrator determines there are hazards or risks to public transportation, AGENCY: National Marine Fisheries (1) Must be in writing and signed by Service (NMFS), National Oceanic and a recipient’s Accountable Executive or the Administrator may issue an advisory which recommends corrective actions, Atmospheric Administration (NOAA), equivalent entity; Commerce. (2) Must include a brief explanation of inspections, conditions, limitations or ACTION: Final rule. why the recipient believes the special other actions to avoid or mitigate any hazards or risks. The Administrator will directive should not apply to it or why SUMMARY: NMFS’ Office of Protected compliance with the special directive is issue notice to recipients of an advisory in the Federal Register. Resources (hereinafter ‘‘OPR’’ or ‘‘we’’ not possible, is not practicable, is or ‘‘our’’), upon request of NMFS’ unreasonable, or is not in the public Subpart D—National Public Northeast Fisheries Science Center interest; and Transportation Safety Plan (NEFSC), hereby issues a regulation to (3) May include relevant information govern the unintentional taking of regarding the factual basis upon which § 670.31 Purpose and contents of the marine mammals incidental to fisheries the special directive was issued, National Public Transportation Safety Plan. research conducted in a specified information in response to any alleged Periodically, FTA will issue a geographical region, over the course of violation or in mitigation thereof, National Public Transportation Safety five years. This regulation, which allows recommend alternative means of Plan to improve the safety of all public for the issuance of a Letter of compliance for consideration, and any transportation systems that receive Authorization for the incidental take of other information deemed appropriate funding under 49 U.S.C. Chapter 53. marine mammals during the described by the recipient. The National Public Transportation activities and specified timeframes, (e) Request for extension. Upon Safety Plan will include the following— prescribes the permissible methods of written request, the Administrator may taking and other means of effecting the extend the time for filing a request for (a) Safety performance criteria for all modes of public transportation, least practicable adverse impact on reconsideration for good cause shown. marine mammal species or stocks and (f) Filing a petition for established through public notice and comment; their habitat, as well as requirements reconsideration. A petition must be pertaining to the monitoring and submitted to the Office of the (b) The definition of state of good reporting of such taking. repair; Administrator, Federal Transit DATES: Effective from September 12, Administration, using one of the (c) Minimum safety performance 2016 through September 9, 2021. following methods— standards for vehicles in revenue ADDRESSES: (1) Email to FTA, sent to an email A copy of the NEFSC’s operations, established through public application, application addendum, and address provided in the notice of special notice and comment; directive; supporting documents, as well as a list (d) Minimum performance standards of the references cited in this document, (2) Facsimile to FTA at 202–366– for public transportation operations are available on the Internet at: http:// 9854; or established through public notice and www.nmfs.noaa.gov/pr/permits/ (3) Mail to FTA at: FTA, Office of the comment; incidental/research.htm. In case of Administrator, 1200 New Jersey Ave. problems accessing these documents, SE., Washington, DC 20590. (e) The Public Transportation Safety please call the contact listed below this (g) Processing of petitions for Certification Training Program; section (see FOR FURTHER INFORMATION reconsideration—(1) General. Each (f) Safety advisories, directives and CONTACT). petition received under this section will reports; be reviewed and disposed of by the (g) Best practices, technical FOR FURTHER INFORMATION CONTACT: Ben Administrator no later than ninety days assistance, templates and other tools; Laws, Office of Protected Resources, (90) after receipt of the petition. No NMFS, (301) 427–8401. (h) Research, reports, data and hearing, argument or other proceeding information on hazard identification SUPPLEMENTARY INFORMATION: will be held directly on a petition before and risk management in public its disposition under this section. Executive Summary transportation, and guidance regarding (2) Grants. If the Administrator the prevention of accidents and This regulation, under the Marine determines the petition contains incidents in public transportation; and Mammal Protection Act (MMPA) (16 adequate justification, he or she may U.S.C. 1361 et seq.), establishes a grant the petition, in whole or in part. (i) Any other content as determined framework for authorizing the take of (3) Denials. If the Administrator by FTA. marine mammals incidental to the determines the petition does not justify [FR Doc. 2016–18920 Filed 8–10–16; 8:45 am] NEFSC’s fisheries research activities in modifying, rescinding or revoking the BILLING CODE P a specified geographical region (the
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Atlantic coast region which includes the Summary of Major Provisions Within Background Northeast U.S. Continental Shelf Large the Final Regulation Sections 101(a)(5)(A) and (D) of the Marine Ecosystem (Northeast LME) and The following provides a summary of MMPA (16 U.S.C. 1361 et seq.) direct a portion of the Southeast U.S. some of the major provisions within this the Secretary of Commerce to allow, Continental Shelf Large Marine regulation for the NEFSC’s fisheries upon request, the incidental, but not Ecosystem (Southeast LME)). research activities in the Atlantic coast intentional, taking of small numbers of The NEFSC collects a wide array of region. We have determined that the marine mammals by U.S. citizens who information necessary to evaluate the NEFSC’s adherence to the mitigation, engage in a specified activity (other than status of exploited fishery resources and monitoring, and reporting measures commercial fishing) within a specified the marine environment. Depending on listed later in this regulation would geographical region if certain findings the research, the NEFSC’s conducts the achieve the least practicable adverse are made and either regulations are following types of research: (1) Fishery- impact on the affected marine issued or, if the taking is limited to independent research directed by mammals. They include: harassment, a notice of a proposed NEFSC scientists and conducted • Required monitoring of the authorization is provided to the public onboard NOAA-owned and operated sampling areas to detect the presence of for review. vessels or NOAA-chartered vessels; (2) marine mammals before deployment of An authorization for incidental fishery-independent research directed pelagic trawl nets, bottom-contact trawl takings shall be granted if OPR finds by cooperating scientists (other gear, pelagic or demersal longline gear, that the taking will have a negligible agencies, academic institutions, and gillnets, fyke nets, pots, traps, and other impact on the species or stock(s), will independent researchers) conducted gears; not have an unmitigable adverse impact onboard non-NOAA vessels; and (3) • Required implementation of on the availability of the species or fishery-dependent research conducted standard tow durations of not more than stock(s) for subsistence uses (where onboard commercial fishing vessels, 30 minutes to reduce the likelihood of relevant), and if the permissible with or without NOAA scientists incidental take of marine mammals; methods of taking and requirements pertaining to the mitigation, monitoring onboard. • Required implementation of the and reporting of such takings are set mitigation strategy known as the ‘‘move- Purpose and Need for This Regulatory forth. OPR has defined ‘‘negligible on rule,’’ which incorporates best Action impact’’ in 50 CFR 216.103 as ‘‘an professional judgment, when necessary impact resulting from the specified during trawl and longline operations; OPR received an application from the activity that cannot be reasonably NEFSC requesting five-year regulations • Required compliance with expected to, and is not reasonably likely and authorization to take multiple applicable vessel speed restrictions; and to, adversely affect the species or stock species of marine mammals. We • Required compliance with through effects on annual rates of anticipate take to occur in the Atlantic applicable and relevant take reduction recruitment or survival.’’ coast region by the following means: plans for marine mammals. Except with respect to certain Level B harassment incidental to the use Cost and Benefits activities not pertinent here, the MMPA of active acoustic devices, visual defines ‘‘harassment’’ as: Any act of disturbance of pinnipeds, and Level A This final rule, specific only to the pursuit, torment, or annoyance which (i) harassment, serious injury, or mortality NEFSC’s fishery research activities, is has the potential to injure a marine incidental to the use of fisheries not significant under Executive Order mammal or marine mammal stock in the research gear. This regulation is valid 12866, Regulatory Planning and Review. wild [Level A harassment]; or (ii) has for five years from the date of issuance. the potential to disturb a marine Availability of Supporting Information Please see ‘‘Background’’ later in this mammal or marine mammal stock in the document for definitions of harassment. We provided SUPPLEMENTARY wild by causing disruption of behavioral Section 101(a)(5)(A) of the MMPA (16 INFORMATION in the NPRM for this patterns, including, but not limited to, U.S.C. 1361 et seq.) directs the Secretary activity in the Federal Register on July migration, breathing, nursing, breeding, of Commerce to allow, upon request, the 9, 2015 (80 FR 39542), and two feeding, or sheltering [Level B incidental, but not intentional taking of corrections to the proposed rulemaking harassment]. small numbers of marine mammals by in the Federal Register on August 6, Summary of Request U.S. citizens who engage in a specified 2015 (80 FR 46939), and August 17, activity (other than commercial fishing) 2015 (80 FR 49196). We did not reprint On December 17, 2014, OPR received within a specified geographical region all of that information here in its an adequate and complete request from if, after notice and public comment, the entirety. Instead, we represent sections the NEFSC for authorization to take agency makes certain findings and from the proposed rule in this document marine mammals incidental to fisheries research activities. We received an issues regulations. This regulation and provide either a summary of the material presented in the proposed rule initial draft of the request on February contains mitigation, monitoring, and or a note referencing the page(s) in the 12, 2014, followed by revised drafts on reporting requirements. proposed rule where the public can find September 19 and October 1, 2014. On Legal Authority for the Regulatory the information. We address any December 29, 2014 (79 FR 78065), we Action information that has changed since the published a notice of receipt of the proposed rule in this document. NEFSC’s application in the Federal Section 101(a)(5)(A) of the MMPA and Additionally, this final rule contains a Register, requesting comments and the implementing regulations at 50 CFR section that responds to the public information related to the NEFSC part 216, subpart I provide the legal comments submitted during the 30-day request for thirty days. All comments basis for issuing the five-year public comment period and the two received were considered in regulations and any subsequent Letters extensions of the public comment development of the proposed of Authorization. period. rulemaking and are available on the
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Internet at: www.nmfs.noaa.gov/pr/ The NEFSC plans to administer and projects last multiple years or may permits/incidental/research.htm. conduct approximately 48 survey continue with modifications. Other The NEFSC proposes to conduct programs over the five-year period. The projects only last one year and are not fisheries research using the following gear types used fall into several continued. Most cooperative research types of gear: Pelagic trawl gear used at categories: Pelagic trawl gear used at projects undergo an annual competitive various levels in the water column, various levels in the water column; selection process to determine funding bottom-contact trawl gear, pelagic and bottom-contact trawl gear; pelagic and for projects based on proposals demersal longlines with multiple hooks, demersal longlines; gillnets; fyke nets; developed by many independent gillnets, fyke nets, dredges, pots, traps, pots; traps; and other gear. The use of researchers and fishing industry and other gear. If a marine mammal pelagic and bottom trawl nets, gillnets, participants. NEFSC survey activity interacts with gear deployed by the fyke nets, and pelagic longline gears are occurs during most months of the year; NEFSC, the outcome could potentially likely to result in interactions with however, most trawl surveys occur be Level A harassment, serious injury marine mammals. The majority of these during the spring, summer, and fall. (i.e., any injury that will likely result in surveys also use active acoustic devices. Longline surveys occur either mortality), or mortality. However, there The federal government has a biannually in the spring or annually in is not sufficient information upon responsibility to conserve and protect the summer and a small number of which to base a prediction of what the living marine resources in U.S. waters gillnet surveys occur annually in the outcome could be for any particular and has also entered into a number of summer. international agreements and treaties interaction. Therefore, the NEFSC has Specified Geographical Region pooled the estimated number of related to the management of living incidents of take expected to result from marine resources in international waters The NEFSC operates within the gear interactions, and we have assessed outside the United States. NOAA has Atlantic coast region, which was the potential impacts accordingly. The the primary responsibility for managing described in detail in the notice of NEFSC also uses various active acoustic marine fin and shellfish species and proposed rulemaking for this activity in devices in the conduct of fisheries their habitats, with that responsibility the Federal Register on July 9, 2015 (80 research, and use of these devices has delegated within NOAA to NMFS. FR 39544–39546). We refer the public to the potential to result in Level B In order to direct and coordinate the that document for further information. collection of scientific information harassment of marine mammals. Level B Detailed Description of Activities harassment of pinnipeds hauled out on needed to make informed fishery We provided a detailed description of the shoreline may also occur, in some management decisions, Congress the NEFSC’s planned research activities, locations within the Atlantic coast created six Regional Fisheries Science gear types and active acoustic sound region, as a result of visual disturbance Centers, each a distinct organizational sources used in the notice of proposed from vessels conducting NEFSC entity and the scientific focal point rulemaking (80 FR 39546–39560; July 9, research. This regulation is valid for five within NMFS for region-based federal 2015) and do not repeat that information years from the date of issuance. fisheries-related research. This research here. There are no changes to the The NEFSC conducts fisheries aims at monitoring fish stock specified activities, gear types, or active research surveys in the Atlantic coast recruitment, abundance, survival and acoustic sound sources described in that region which spans the United States- biological rates, geographic distribution document. Canadian border to Florida. This of species and stocks, ecosystem process specified geographic region includes the changes, and marine ecological Comments and Responses following subareas: The Gulf of Maine, research. The NEFSC is the research arm of NMFS in the greater Atlantic Ocean We published a notice of proposed Georges Bank, Southern New England rulemaking in the Federal Register on waters, the Mid-Atlantic Bight, and the region of the United States. The NEFSC conducts research and provides July 9, 2015 (80 FR 39542) and coastal waters of northeast Florida. The requested comments and information NEFSC requested authorization to take scientific advice to manage fisheries and conserve protected species in Northeast from the public. We also published two individuals of 10 species by Level A and Southeast LMEs and provides corrections and extensions of the public harassment, serious injury, or mortality scientific information to support the comment period for the proposed (hereafter referred to as M/SI + Level A) New England Fishery Management rulemaking in the Federal Register on and of 19 species by Level B Council, the Mid-Atlantic Fishery August 6, 2015 (80 FR 46939), and harassment. Management Council, the Atlantic August 17, 2015 (80 FR 49196). During Description of the Specified Activity States Marine Fisheries Commission, the 70-day public comment period, we and numerous other domestic and received letters from the Marine Overview international fisheries management Mammal Commission (Commission), a The NEFSC collects a wide array of organizations. joint letter from the Humane Society of information necessary to evaluate the the United States and Whale and status of exploited fishery resources and Dates and Duration Dolphin Conservation (HSUS/WDC), the marine environment. NEFSC The specified activity may occur at and comments from two private citizens scientists conduct fishery-independent any time during the five-year period of which were not germane to the research onboard NOAA-owned and validity of the issued regulation. Dates proposed action. We provide the operated vessels or on chartered vessels. and duration of individual surveys are comments and our responses here, and For other types of surveys, cooperating inherently uncertain, based on we have posted those comments on the scientists may conduct fishery- congressional funding levels for the Internet at: http://www.nmfs.noaa.gov/ independent research onboard non- NEFSC, weather conditions, or ship pr/permits/incidental/research.htm and NOAA vessels. Finally, the NEFSC contingencies. In addition, the NEFSC on the federal e-Rulemaking Portal at sponsors some fishery-dependent designs the cooperative research www.regulations.gov (enter 0648–BF02 research conducted onboard commercial program to provide flexibility on a in the ‘‘Search’’ box and scroll down to fishing vessels, with or without NEFSC yearly basis in order to address issues as the Comments section). Please see the scientists onboard. they arise. Some cooperative research comment letters for the full rationale
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behind our response to the signals also have durations that are 31, 2015). NOAA recognizes, as new recommendations. typically very brief (less than one science becomes available, that our Comment 1: The Commission second), with temporal characteristics current categorizations (i.e., impulse recommends that OPR develop criteria that more closely resemble those of versus continuous) may not fully and guidance for determining when impulsive sounds than non-impulsive encompass the complexity associated prospective applicants should request sounds, which typically have more with behavioral responses (e.g., context) taking by Level B harassment incidental gradual rise times and longer decays and are working toward addressing to the use of sub-bottom profilers, (ANSI, 1995; NIOSH, 1998). With regard these issues in future acoustic guidance. echosounders, and other sonars, stating to behavioral thresholds, we consider With respect to updating behavioral that we should follow a consistent the temporal and spectral characteristics thresholds for different types of sound approach in assessing the potential for of echosounder signals to more closely sources as soon as possible, OPR agrees taking by Level B harassment from resemble those of an impulse sound with the Commission’s active acoustic systems. than a continuous sound. recommendation. Due to the complexity Response: OPR agrees with the The Commission suggests that, for and variability of marine mammal Commission’s recommendation. certain sources considered here, the behavioral responses, NOAA will Generally speaking, there has been a interval between pulses would not be continue to work on developing lack of information and scientific discernible to the animal, rendering guidance regarding the effects of consensus regarding the potential effects them effectively continuous. However, anthropogenic sound on marine of electromechanical sources (including echosounders emit pulses in a similar mammal behavior. scientific sonars) on marine mammals, fashion as odontocete echolocation click Comment 3: The Commission notes which may differ depending on the trains. Research indicates that marine that we have delineated two categories acoustic system and species in question mammals, in general, have extremely of acoustic sources, largely based on as well as the environment in which an fine auditory temporal resolution and frequency, with those sources operating applicant operates the system. We are can detect each signal separately (e.g., at frequencies greater than the known currently working to ensure that our Au et al., 1988; Dolphin et al., 1995; hearing ranges of any marine mammal consideration on the use of these types Supin and Popov, 1995; Mooney et al., (i.e., greater than 180 kHz) lacking the of active acoustic sources is consistent 2009), especially for species with potential to cause disruption of and look forward to the Commission’s echolocation capabilities. Therefore, it behavioral patterns. The Commission advice as we develop guidance as is highly unlikely that marine mammals recommends that we review the recent recommended. would perceive echosounder signals as scientific literature on acoustic sources Comment 2: The Commission being continuous. The Commission with frequencies above 180 kHz (i.e., recommends that the OPR require the provides numerous references Deng et al., 2014; Hastie et al., 2014) NEFSC to estimate the numbers of purporting to demonstrate behavioral and incorporate those findings into our marine mammals taken by Level B responses by marine mammals to criteria and guidance for determining harassment incidental to use of active received levels of sound below 160 dB when prospective applicants should acoustic sources (e.g., echosounders) rms from sources with characteristics request authorization for taking by Level based on the 120-decibel (dB) rather similar to those used by the NEFSC. B harassment from the use of than the 160-dB root mean square (rms) However, the vast majority of these echosounders, sonars, and sub-bottom threshold. Please see the notice of references concern acoustic deterrent profilers. proposed rulemaking (80 FR 39542; July devices, which we do not believe are Response: We are aware of the 9, 2015) for a discussion related to similar to the NEFSC’s acoustic sources. referenced literature and considered acoustic terminology and thresholds. In In conclusion, echosounder signals that information in our notice of addition, the Commission recommends are intermittent rather than continuous proposed rulemaking (80 FR 39558, July that the OPR formulate a strategy for signals, and the fine temporal resolution 9, 2015). In general, the referenced work updating behavioral thresholds for all of the marine mammal auditory system indicates that ‘‘sub-harmonics’’ could be types of sound sources (i.e., impulsive allows them to perceive these sounds as ‘‘detectable’’ by certain species at and non-impulsive) incorporating new such. Further, the physical distances up to several hundred meters. data regarding behavioral thresholds characteristics of these signals indicate However, this detectability is in and finalize the thresholds within the a greater similarity to the way that reference to ambient noise, not to OPR’s next year or two. intermittent, impulsive sounds are established 160-dB threshold for Response: Continuous sounds are received. Therefore, the 160-dB assessing the potential for incidental those whose sound pressure level threshold (typically associated with take for these sources (see also our remains above that of the ambient impulsive sources) is more appropriate response to Comment 2). Source levels sound, with negligibly small than the 120-dB threshold (typically of the secondary peaks considered in fluctuations in sound levels (NIOSH, associated with continuous sources) for these studies—those within the hearing 1998; ANSI, 2005), while intermittent estimating takes by behavioral range of some marine mammals—range sounds are defined as sounds with harassment incidental to use of such from 135–166 dB, meaning that these interrupted levels of low or no sound sources. This response represents the sub-harmonics either would be below (NIOSH, 1998). Thus, echosounder consensus opinion of acoustics experts the threshold for behavioral harassment signals are not continuous sounds but from NMFS’ OPR and Office of Science or would attenuate to such a level rather intermittent sounds. One can and Technology. within a few meters. Beyond these further define intermittent sounds as Finally, we agree with the important study details, these high- either impulsive or non-impulsive. Commission’s recommendation to revise frequency (i.e., Category 1) sources and Impulsive sounds have been defined as existing acoustic criteria and thresholds any energy they may produce below the sounds which are typically transient, as necessary to specify threshold levels primary frequency that could be audible brief (less than one second), broadband, that would be more appropriate for a to marine mammals would be and consist of a high peak pressure with wider range of sound sources and are dominated by a few primary sources rapid rise time and rapid decay (ANSI, currently in the process of producing (e.g., EK60) that are operated near- 1986; NIOSH, 1998). Echosounder such revisions (see 80 FR 45642, July continuously—much like other Category
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2 sources considered in our assessment Comment 5: HSUS/WDC commented common dolphins is correct and has not of potential incidental take from the that ‘‘it would be important for changed. NEFSC’s use of active acoustic commenters at this stage to understand Comment 7: HSUS/WDC commented sources—and the potential range above whether the agency was simply that NMFS should re-examine impacts threshold would be so small as to adopting status quo mitigation measures to bottlenose dolphin stocks since the essentially discount them. discussed in the preferred alternative of NEFSC’s research plans have not Comment 4: HSUS/WDC provided the DPEA or including additional changed from what the NEFSC comments on OPR’s process for conservation measures for this permit. It presented in the original application for evaluating and adopting the NEFSC’s would also be helpful to compare the an LOA and the Draft PEA. The Draft Programmatic Environmental data used in assessing status of, and commenters note that NMFS reduced Assessment (PEA) as described in the impacts to, marine mammals discussed the number of impacted bottlenose notice of proposed rulemaking. The in the Draft PEA and which we dolphin stocks to three: Western North commenters state that ‘‘. . . [NMFS] has critiqued in our comments. Yet there is Atlantic (WNA) Offshore, WNA ‘evaluated the Draft EA and [we] are no means of comparing what was Northern Migratory Coastal and WNA proposing to adopt it,’ which would proposed in the draft to what NMFS Southern Migratory Coastal rather than seem to indicate that no or only says it will adopt in a final form to allow expand the list to consideration of all insubstantial changes were made, understanding of whether changes were coastal bottlenose dolphin stocks as despite substantial critique of the Draft made in response to comments.’’ HSUS/WDC suggested in their 2014 PEA. Moreover, NMFS appears to have Response: See our Response to comments on the original application finalized the Draft PEA as it states that Comment 4. The NEFSC adhered to the for an LOA and the Draft PEA. [HSUS/WDC’s] comments were procedural requirements of NEPA; the Response: The NEFSC considered ‘considered’ in finalizing the PEA.’’ CEQ regulations for implementing HSUS/WDC’s public comments on the Response: OPR would like to clarify NEPA, and NOAA Administrative Order likelihood of their research activities the process for evaluating the NEFSC’s 216–6 in developing the Final PEA. The affecting certain stocks of bottlenose dolphins and reanalyzed the locations Draft PEA. First, we clearly state in our connected federal action covered under notice of proposed rulemaking (80 FR of their research activities relative to the the NEFSC’s Final PEA is the issuance 39600, July 9, 2015) that the NEFSC, not ranges of estuarine and coastal of regulations and subsequent Letter of NMFS’ OPR, prepared the Draft PEA in bottlenose dolphin stocks in the Authorization (LOA) for the incidental accordance with the National Southeast LME within the Atlantic coast taking of marine mammals under the Environmental Policy Act of 1969 region. Based on that reanalysis and MMPA. Under section 101(a)(5)(A) of (NEPA; 42 U.S.C. 4321 et seq.) and the consideration of public comments, the the MMPA, OPR must consider a Council on Environmental Quality NEFSC determined that the impact of reasonable range of mitigation measures (CEQ) regulations (40 CFR 1500–1508). their coastal research activities, namely that may reduce the impact on marine The NEFSC released the Draft PEA for the Apex Predators Bottom Longline mammals among other factors. public review and comment in the Coastal Shark and the Cooperative Federal Register on December 29, 2014 However, some of the additional Atlantic States Shark Pupping and (79 FR 78061); considered public measures considered in the NEFSC’s Nursery Ground (COASTSPAN) comments in the interim; and finalized Alternative 3 could prevent them from Surveys, within the Southeast LME was their PEA in November 2015. The maintaining the scientific integrity of its smaller than the information presented NEFSC addresses public comments on research programs. The NEFSC would in the original 2014 application for an the Draft PEA—including those normally exclude these measures from LOA and the Draft PEA. submitted by HSUS/WDC in Section 1.5 consideration in the Chapter 1 of the The NEFSC’s revised analysis of the Final PEA which is available on Final PEA as they would not meet the revealed that the Apex Predators Bottom the Internet at: http:// NEFSC’s purpose and need under Longline Coastal Shark Survey www.nmfs.noaa.gov/pr/permits/ NEPA. Again, the NEFSC provides intersects with the estimated ranges of incidental/research.htm. information on how they considered three stocks of bottlenose dolphins: The Second, for the purposes of and addressed public comments in the WNA Offshore; the WNA Northern determining whether the issuance of Final PEA in Sections 1.5 of that Migratory Coastal; and the WNA regulations and a subsequent Letter of document. Also, Sections 4.4 and 4.6 Southern Migratory Coastal stocks. This Authorization (LOA) would have a describe the NEFSC’s consideration of survey generally samples in water significant effect on the human Alternative 3 which includes a suite of depths greater than 20 m (66 ft) (i.e., environment, OPR stated that we would mitigation measures that the NEFSC did outside the typical range of estuarine independently evaluate the NEFSC’s not propose to implement as a part of dolphin stocks) and does not intersect Draft PEA, propose to adopt it (i.e., the its Preferred Action under Alternative 2. with the remaining three coastal stocks final PEA that addresses public Comment 6: HSUS/WDC commented in question: The WNA South Carolina- comments received on the NEFSC’s on a discrepancy between Table 3 and Georgia Coastal; the WNA Northern Draft PEA and our notice of proposed Table 20 in the notice of proposed Florida Coastal; and the WNA Central rulemaking); or prepare a separate rulemaking for the potential biological Florida Coastal. The NEFSC determined NEPA analysis and incorporate relevant removal (PBR) level for short-beaked that a take request was not warranted portions of NEFSC’s Draft PEA by common dolphins. based on the following factors reference (80 FR 39600, July 9, 2015). Response: We thank the commenters including: (1) The efficacy of the Thus, the commenters’ statement that for their review and have corrected the planned mitigation and monitoring ‘‘. . . NMFS appears to have finalized PBR value for short-beaked common measures in reducing the effects of the the Draft PEA as it states that our dolphins to show 1,125 in Table 9 of specified activity to the level of least comments were ‘‘considered’’ in this document instead of 170, which is practicable adverse impact; (2) the finalizing the PEA,’’ is inaccurate, as the the average annual human caused survey’s location (offshore in water NEFSC had not finalized the Draft PEA mortality estimate. The information depths greater than 20 m [66 ft] depth) at the time of publishing the proposed provided in Table 3 in the notice of which has limited overlap with the rulemaking in July 2015. proposed rulemaking for short-beaked primary habitat of the coastal
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morphotype of bottlenose dolphins; (3) all bottlenose dolphin stocks within the potential behavioral impacts, it is not the total survey effort (less than 50 days Atlantic coast region. clear what additional or different annually); (4) seasonality (spring); and Comment 8: HSUS/WDC commented approaches to impact assessment HSUS (5) survey frequency (conducted every that the NEFSC’s LOA application did et al. might recommend. Absent a two to three years). not consider the impact of an unusual specific recommendation to consider, In assessing the impacts of the mortality event (UME) in the northwest we believe that our approach to COASTSPAN survey, the NEFSC did Atlantic Ocean on the overall assessing the potential for behavioral not request take from the estuarine abundance (and PBR for each stock) of harassment incidental to the NEFSC’s stocks of bottlenose dolphins in North the WNA Northern and Southern use of active acoustics is appropriate. Carolina, South Carolina, Georgia, and Migratory Coastal stocks and the NMFS’ assessment of acoustic impacts Florida, due to limited survey effort in resident populations of the South and the associated take estimates estuarine waters. As discussed in the Carolina/Georgia Coastal, North Florida represent the consensus opinion of notice of proposed rulemaking (80 FR Coastal and Central Florida Coastal acoustics experts from NMFS’ Office of 39587, July 9, 2015), in the future, if stocks. They suggested that NMFS Protected Resources and Office of there is a bottlenose dolphin take from should reconsider the impacts of Science and Technology. one of the estuarine stocks (to be additional research-related takes on The Risch et al. (2012) study determined by genetic sampling), the those stocks. documented reductions in humpback NEFSC will consult with OPR and the Response: NMFS considered UMEs whale vocalizations in the Stellwagen Atlantic Bottlenose Dolphin Take within the notice of proposed Bank National Marine Sanctuary Reduction Team under the Adaptive rulemaking for this activity in the concurrent with transmissions of the Management provisions of the final rule Federal Register on July 9, 2015 (80 FR Ocean Acoustic Waveguide Remote to discuss appropriate modifications to 39569). See our Response to Comment Sensing (OAWRS) low-frequency fish COASTSPAN survey protocols. 7 with respect to the lack of anticipated sensor system at distances of 200 km NMFS provided a revised accounting impacts related to NEFSC research from the source. The recorded OAWRS of those coastal bottlenose dolphin activities on the WNA South Carolina- produced a series of frequency stocks potentially impacted by the Georgia Coastal, the WNA Northern modulated pulses (between 0.4 and 1 NEFSC’s research activities within the Florida Coastal, and the WNA Central kHZ, much lower in frequency, longer 2015 Addendum to the NEFSC’s 2014 Florida Coastal stocks of bottlenose in duration, with the potential to mask LOA Application, available at: http:// dolphins. mysticete vocalizations at longer www.nmfs.noaa.gov/pr/permits/ The dolphin stocks that may distances than the predominant incidental/research.htm which NMFS potentially occur within the vicinity of frequencies produced by the NEFSC’s announced in the ‘‘Availability’’ section NEFSC coastal research activities active acoustic sources which attenuate of the Federal Register notice of include: The WNA Offshore, the WNA at shorter distances from the source) and proposed rulemaking, 80 FR 39542, July Northern Migratory Coastal, the the signal received levels ranged from 9, 2015. Table 20 in the notice of Southern Migratory Coastal, and the 88 to 110 dB re: 1 mPa (Risch et al., proposed rulemaking (80 FR 39595, July WNA Southern Migratory Coastal 2012). The authors hypothesized that 9, 2015) shows the total estimated take stocks. However, specific information is individuals did not leave the area but by mortality, serious injury, and Level A lacking on which particular population instead ceased singing and noted that harassment for the three stocks. The or populations are affected by the UME the duration and frequency range of the NEFSC take request for bottlenose (NMFS, 2015). OAWRS signals (a novel sound to the dolphins includes two in trawl gear, five As discussed in the notice of whales) were similar to those of natural in gillnet gear, one in longline gear, and proposed rulemaking and in the humpback whale song components used three for the potential take of one analyses in other referenced documents, during mating (Risch et al., 2012). unidentified delphinid by trawl, gillnet, NMFS has evaluated the potential However, Gong et al. (2014), disputes and/or longline for the WNA Offshore, effects of the NEFSC’s research activities these findings, suggesting that (Risch et the WNA Northern Migratory Coastal, on a number of marine mammal species, al., 2012) mistook natural variations in and the WNA Southern Migratory including impacts to bottlenose humpback whale song occurrence for Coastal stocks during the five-year dolphins stocks subject to the current changes caused by OAWRS activity authorization period. UME and concludes that NEFSC’s approximately 200 km away. Risch et al. The NEFSC notes in their final PEA activities will have a negligible impact (2014) responded to Gong et al. (2014) that the Southeast Fisheries Science on those stocks. and highlighted the context-dependent Center’s (SEFSC) research activities Comment 9: HSUS/WDC expressed nature of behavioral responses to could also potentially interact with the concern that we may not be acoustic stressors. some of the same offshore and coastal appropriately accounting for behavioral Furthermore, the three predominant stocks in the Atlantic coast region. The impacts incidental to the NEFSC’s use acoustic sources used by the NEFSC SEFSC is currently developing a Draft of active acoustic sources and noted that produce frequencies above the known PEA and LOA application concerning such impacts could occur at greater functional hearing ranges for mysticetes. fisheries research under its distances than considered in our Mysticetes, including the humpback responsibility within the Atlantic coast analysis. The commenters discuss the whale, are not likely to perceive most region. The SEFSC’s Draft PEA will also results from Risch et al. (2012) and signals produced through the NEFSC’s include consideration of coastal and suggest that it is likely that disturbance use of active acoustic sources and are estuarine bottlenose dolphin stocks from some of the NEFSC’s active therefore unlikely to behaviorally within their future LOA application. acoustic sources would be more respond in a manner considered take. This will include consideration of the widespread than projected thus The NEFSC’s initial estimates of Level NEFSC’s research activities that occur in underestimating the occurrence of Level B harassment due to acoustic sources the Atlantic coast region. Thus, NMFS B harassment. did not consider functional hearing will be able to consider the combined Response: See our Response to ranges and are therefore overestimates impacts of incidental take related to Comment 2. Beyond consideration of a for mysticetes. For the final rule, NMFS NEFSC and SEFSC research activities on different threshold for assessing has considered functional hearing and
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has revised the expected take for survey and as necessary between ship’s an initial training course and refresher mysticetes accordingly. crew (commanding officer/master or courses annually or as necessary. The Comment 10: HSUS/WDC commented designee(s), as appropriate) and implementation of this new training on NMFS corrections to the proposed scientific party in order to explain program will formalize and standardize rule that increased the projected responsibilities, communication the information provided to all crew mortality estimates for gray and harbor procedures, marine mammal monitoring that might experience protected species seals and sought clarification on the protocol, and operational procedures. interactions during research activities. proposed increase in take for both The chief scientist (CS) will be Vessel speed—Vessel speed during species. responsible for coordination with the active sampling rarely exceeds 5 kt, Response: The NEFSC reported an Officer on Deck (OOD; or equivalent on with typical speeds being 2 to 4 kt. interaction with one gray seal during a non-NOAA platforms) to ensure that Transit speeds vary from 6 to 14 kt but Spring Bottom Trawl Survey in April requirements, procedures, and decision- average 10 kt. These low vessel speeds 2015, after releasing their LOA making processes are understood and minimize the potential for ship strike application and Draft PEA for public properly implemented. (see ‘‘Potential Effects of the Specified comment. In order to account for the For all NEFSC-affiliated research Activity on Marine Mammals and Their potential for future gear interaction projects and vessels, the vessel Habitat’’ for an in-depth discussion of indicated by this event, NMFS included coordinator and center director reviews ship strike). At any time during a survey this information within the notice of cruise instructions and protocols for or in transit, if a crew member standing proposed rulemaking (80 FR 39582, July avoiding adverse interactions with watch or dedicated marine mammal 9, 2015; see Table 4, footnote 2). NMFS protected species. If the research is observer sights marine mammals that then used this information to adjust the conducted on a NOAA vessel, the may intersect with the vessel course, estimated take by mortality for gray Commanding Officer finalizes these that individual will immediately seals and harbor seals (a species with instructions. If any inconsistencies or communicate the presence of marine potential similar gear vulnerability as deficiencies are found, the written mammals to the bridge for appropriate the gray seal) accordingly in the Federal instructions will be made fully course alteration or speed reduction, as Register notice of correction (80 FR consistent with the Northeast Fisheries possible, to avoid incidental collisions. 46939, August 6, 2015). Observer Program (NEFOP) training Other gears—The NEFSC deploys a wide variety of gear to sample the Mitigation materials and any guidance on decision- making that arises out of the training marine environment during all of their In order to issue an incidental take opportunities described earlier. In research cruises. Many of these types of authorization under section 101(a)(5)(A) addition, the NEFSC will review gear (e.g., plankton nets, video camera of the MMPA, NMFS must set forth the informational placards and reporting and ROV deployments) are not permissible methods of taking pursuant procedures and update them as considered to pose any risk to marine to such activity, ‘‘and other means of necessary for consistency and accuracy. mammals and are therefore not subject effecting the least practicable adverse Many research cruises already include to specific mitigation measures. In impact on such species or stock and its pre-sail review of protected species addition, specific aspects of gear design, habitat, paying particular attention to protocols. The NEFSC will require pre- survey protocols (e.g., number of hooks), rookeries, mating grounds, and areas of sail briefings before all research cruises, and limited frequency of use indicate similar significance, and on the including those conducted by that certain types of gears that may availability of such species or stock for cooperating partners, as part of its otherwise be expected to have the subsistence uses.’’ NMFS provided a continuing research program. potential to result in take of marine full description of the planned Protected species training—In an mammals do not pose significant risk to mitigation measures, including effort to help standardize and further certain species of marine mammals (e.g., background discussion related to certain emphasize the importance of protected large whales interactions with NEFSC elements of the mitigation plan, in the species information, the NEFSC will longline gears) and are not subject to notice of proposed rulemaking (80 FR implement a formalized protected specific mitigation measures due to the 39595, July 9, 2015). Please see that species training program for all crew low level of survey effort and small document for more detail. members as part of its continuing survey footprint relative to that of research program that will be required commercial fisheries. However, at all General Measures for all NEFSC-affiliated research times when the NEFSC is conducting Coordination and communication— projects, including cooperative research survey operations at sea, the OOD and/ We require that the NEFSC take all partners. The NEFSC will conduct or CS and crew will monitor for any necessary measures to coordinate and training programs on a regular basis unusual circumstances that may arise at communicate in advance of each which will include topics such as a sampling site and use best specific survey with NOAA’s Office of monitoring and sighting protocols, professional judgment to avoid any Marine and Aviation Operations species identification, decision-making potential risks to marine mammals (OMAO), or other relevant parties, to factors for avoiding take, procedures for during use of all research equipment. ensure that all mitigation measures and handling and documenting protected Handling procedures—The NEFSC monitoring requirements described species caught in research gear, and will implement a number of handling herein, as well as the specific manner of reporting requirements. Required protocols to minimize potential harm to implementation and relevant event- training will occur through participation marine mammals that are incidentally contingent decision-making processes, in protected species training programs taken during the course of fisheries are clearly understood and agreed-upon. developed by the regional commercial research activities. In general, protocols This may involve describing all required Fisheries Observer Program, which will have already been prepared for use on measures when submitting cruise typically be the NEFOP. commercial fishing vessels. Because instructions to OMAO or when All NEFSC research crew members incidental take of marine mammals in completing contracts with external that may be assigned to monitor for the fishing gear is similar for commercial entities. The NEFSC will coordinate and presence of marine mammals during fisheries and research surveys, NEFSC conduct briefings at the outset of each future surveys will be required to attend proposes to adopt these protocols,
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which are expected to increase post- from the vessel illuminates the water in interactions and those that aid in release survival. In general, following a the immediate vicinity of the vessel successfully avoiding such events). Best ‘‘common sense’’ approach to handling during gear setting and retrieval. professional judgment takes into captured or entangled marine mammals After moving on, if marine mammals consideration the species, numbers, and will present the best chance of are still visible from the vessel and behavior of the animals, the status of the minimizing injury to the animal and of appear to be at risk, the OOD may trawl net operation (e.g., net opening, decreasing risks to scientists and vessel decide to move the vessel again or skip depth, and distance from the stern), the crew. Handling or disentangling marine the sampling station. The OOD will time it would take to retrieve the net, mammals carries inherent safety risks, consult with the CS or other designated and safety considerations for changing and using best professional judgment scientist (identified prior to the voyage speed or course. We recognize that it is and ensuring human safety is and noted on the cruise plan) and other not possible to dictate in advance the paramount. The NEFSC protected experienced crew as necessary to exact course of action that the OOD or species training programs will include determine the best strategy to avoid CS should take in any given event procedures for handling and potential takes of these species. involving the presence of marine documenting protected species caught Strategies are based on the species mammals in proximity to an ongoing in research gear, and reporting encountered, their numbers and trawl tow, given the sheer number of requirements. The CS and appropriate behavior, their position and vector potential variables, combinations of members of the research crews will also relative to the vessel, and other factors. variables that may determine the be trained using the same monitoring, For instance, a whale transiting through appropriate course of action, and the data collection, and reporting protocols the area and heading away from the need to consider human safety in the for protected species as is required by vessel may not require any move, or operation of fishing gear at sea. the NEFOP. may require only a short move from the Nevertheless, we require a full initial sampling site, while a pod of accounting of factors that shape both Trawl Survey Visual Monitoring and dolphins gathered around the vessel successful and unsuccessful decisions Operational Protocols may require a longer move from the and these details will be fed back into The mitigation requirements initial sampling site or possibly NEFSC training efforts and ultimately described here are applicable to all cancellation of the station if the help to refine the best professional beam, mid-water, and bottom trawl dolphins follow the vessel. If trawling judgment that determines the course of operations conducted by the NEFSC. operations have been delayed because of action taken in any given scenario (see Visual monitoring—The OOD, CS (or the presence of marine mammals, then further discussion in ‘‘Monitoring and other designated member of the the vessel resumes trawl operations Reporting’’). Scientific Party), and crew standing (when practical) only when the animals Speed and course alterations, Tow watch on the bridge visually scan for have not been sighted near the vessel or duration and direction—The vessel’s marine mammals (and other protected otherwise determined to no longer be at speed during active sampling with trawl species) during all daytime operations. risk. This decision is at the discretion of nets will not exceed 5 kt. Typical Marine mammal watches will be the OOD and is situationally dependent. towing speeds are 2–4 kt. Transit speed conducted by scanning the surrounding In general, trawl operations will be between active sampling stations will waters with bridge binoculars to survey conducted immediately upon arrival on range from 10–12 kt, except in areas the area upon arrival at the station, station in order to minimize the time where vessel speeds are regulated to during visual and sonar reconnaissance during which marine mammals may lower speeds. When operating in North of the trawl line to look for potential become attracted to the vessel. However, Atlantic right whale Seasonal hazards (e.g., commercial fishing gear, in some cases it will be necessary to Management Areas, Dynamic unsuitable bottom for trawling, etc.), conduct small net tows (e.g., bongo net) Management Areas, or in the vicinity of and while the gear is deployed. During prior to deploying trawl gear in order to right whales or surface active groups of nighttime operations, visual observation avoid trawling through extremely high large baleen whales the vessel’s speed will be conducted using the naked eye, densities of gelatinous zooplankton that will not exceed 10 kt. Further, vessels to the extent allowed by available vessel can damage trawl gear. will reduce speed and change course in lighting. Once the trawl net is in the water, the the vicinity of resting groups of large Operational procedures—The primary OOD, CS, and/or crew standing watch whales. purpose of conducting visual will continue to visually monitor the As noted earlier, if marine mammals monitoring period is to implement the surrounding waters and will maintain a are sighted prior to deployment of the ‘‘move-on rule.’’ If marine mammals are lookout for marine mammal presence as trawl net, the vessel may be moved sighted around the vessel before setting far away as environmental conditions away from the animals to a new station the gear, the OOD may decide to move allow. at the discretion of the OOD. Also, at the vessel away from the marine If marine mammals are sighted before any time during a survey or in transit, mammal to a different section of the the gear is fully retrieved, the most any crew member that sights marine sampling area if the animal appears to appropriate response to avoid marine mammals that may intersect with the be at risk of interaction with the gear. mammal interaction will be determined vessel course will immediately During daytime trawl operations, by the professional judgment of the CS, communicate their presence to the research trawl gear is not deployed if watch leader, OOD and other bridge for appropriate course alteration marine mammals have been sighted experienced crew as necessary. This or speed reduction as possible to avoid near the ship unless those animals do judgment will be based on past incidental collisions. not appear to be in danger of experience operating trawl gears around Standard survey protocols that are interactions with the trawl, as marine mammals (i.e., best professional expected to lessen the likelihood of determined by the judgment of the OOD judgment) and on NEFSC training marine mammal interactions include and CS. The efficacy of the move-on sessions that will facilitate standardized tow durations and rule is limited during night time trawl dissemination of expertise operating in distances. Standard tow durations of not operations or other periods of limited these situations (e.g., factors that more than 30 minutes at the target depth visibility. However, operational lighting contribute to marine mammal gear will be implemented, excluding
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deployment and retrieval time (which described above for trawl surveys. warranted. If setting operations have may require an additional 30 minutes, Please see that section for full details. been halted due to the presence of depending on target depth), to reduce Operational procedures—Prior to marine mammals, resumption of setting the likelihood of attracting and setting the gear, the OOD, CS, and crew will not begin until no marine mammals incidentally taking marine mammals. visually scan the waters surrounding the have been observed for at least 15 Short tow durations decrease the vessel for protected species at least 30 minutes. When visibility allows, the opportunity for marine mammals to find minutes before deploying the longline OOD, CS, and crew standing watch will the vessel and investigate. The gear. This typically occurs during transit conduct set checks every 15 minutes to exceptions to the 30-minute tow through the setting area and then look for hooked, or entangled marine duration are the Atlantic Herring returning back to the starting point. mammals. Acoustic Pelagic Trawl Survey and the Longline sets may be delayed if marine If marine mammals are present during Deep-Water Biodiversity Survey where mammals have been detected near the retrieval operations, haul-back will be the total time in the water (deployment, vessel in the 30 minutes prior to setting postponed until the OOD determines fishing, and haul-back) are 40 to 60 the gear. that it is safe to proceed. If haul-back minutes and 180 minutes, respectively. For the Apex Predators Bottom operations have been halted due to the Trawl tow distances will be less than Longline Coastal Shark Survey, which presence of marine mammals, 3 nm—typically 1–2 nm, depending on has a separate survey protocol from the resumption of haul-back would begin the specific survey and trawl speed— COASTSPAN and NEFOP Observer when no marine mammals have been which NMFS expects to reduce the Bottom Longline Training surveys observed for at least 15 minutes. When likelihood of attracting and incidentally conducted by NEFSC, the OOD, CS, and visibility allows, the OOD, CS, and crew taking marine mammals. crew use a one nautical mile radius standing watch will conduct set checks around the vessel to guide the decision Gear maintenance—The crew will be every 15 minutes to look for hooked, on whether marine mammals are at risk careful when emptying the trawl to trapped, or entangled marine mammals. of interactions before deploying the avoid damage to marine mammals that gear. The vessel may be moved to a new Gillnet Visual Monitoring and may be caught in the gear but are not location if marine mammals are present Operational Protocols visible upon retrieval. The gear will be and the OOD uses professional Visual monitoring—The monitoring emptied as quickly as possible after judgment to minimize the risk to marine procedures for gillnets are similar to retrieval in order to determine whether mammals from potential gear those described for trawl gear. The or not marine mammals are present. The interactions. NEFSC does not propose to use pelagic vessel’s crew will clean trawl nets prior The OOD, CS, and crew standing gillnets in any survey. to deployment to remove prey items that watch will continually monitor the gear Operational procedures—Gillnets are might attract marine mammals. Catch to look for hooked or entangled marine not deployed if marine mammals have volumes are typically small with every mammals and other protected species been sighted on arrival at the sample attempt made to collect all organisms and will release the animal following site. The exception is for animals that, caught in the trawl. standard handling and release protocols because of their behavior, travel vector Dredge Survey Visual Monitoring and for marine mammals. or other factors, do not appear to be at Operational Protocols The NEFSC has established standard risk of interaction with the gillnet gear. soak times of three hours for bottom If no marine mammals are present, the The mitigation requirements longline and two to five hours for gear is set and monitored during the described here are applicable to all pelagic longline surveys. The CS will soak. If a marine mammal is sighted hydraulic, New Bedford-type, ensure that soak times do not exceed during the soak and appears to be at risk commercial, and Naturalist dredge five hours, except in cases where of interaction with the gear, then the operations conducted by the NEFSC. weather or mechanical difficulty delay gear is pulled immediately. Visual monitoring—Visual monitoring gear retrieval. For the COASTSPAN surveys, which requirements for all dredge gears are the NEFSC longline protocols specifically are performed in areas where estuarine same as those described above for trawl prohibit chumming (releasing additional dolphins may occur, the NEFSC will surveys. Please see that section for full bait to attract target species to the gear). actively monitor for potential bottlenose details of the visual monitoring and Bait is removed from hooks during dolphin entanglements by hand ‘‘move-on’’ protocols. However, care retrieval and retained on the vessel until checking the gillnet gear every 20 will be taken when emptying the dredge all gear is removed from the area. The minutes by lifting the foot net. Also, in to avoid damage to protected species crew will not discard offal or spent bait the unexpected case of a bottlenose that may be caught in the gear but are while longline gear is in the water to dolphin entanglement, the NEFSC not visible upon retrieval. The gear will reduce the risk of marine mammals would request and arrange for expedited be emptied as quickly as possible after detecting the vessel or being attracted to genetic sampling in order to determine retrieval in order to determine whether the area. the stock and would photograph the or not protected species are present. If marine mammals are detected while dorsal fin and submit to the Southeast Tow duration and direction— longline gear is in the water, the OOD Stranding Coordinator for Standard dredge durations are 15 exercises similar judgment and identification/matching to bottlenose minutes or less, excluding deployment discretion to avoid incidental take of dolphins in the Mid-Atlantic Bottlenose and retrieval time, to reduce the marine mammals as described for trawl Dolphin Photo-identification Catalog. likelihood of attracting and incidentally gear. The species, number, and behavior On the NEFOP Observer Gillnet taking protected species. of the marine mammals are considered Training cruises, which occur in areas along with the status of the ship and covered by the HPTRP, acoustic pingers Longline Gear Visual Monitoring and gear, weather and sea conditions, and and weak links are used on all gillnets Operational Protocols crew safety factors. consistent with the Harbor Porpoise Visual monitoring—Visual monitoring If marine mammals are present during Take Reduction Plan regulations at (50 requirements for pelagic or demersal setting operations, immediate retrieval CFR 229.33) for commercial fisheries to longline surveys are the same as those or halting the setting operations may be reduce marine mammal bycatch. Under
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the HPTRP, gillnet gear used in specific retrieved by pulling both ends onto requirements specified for their areas during specific times are required shore. Typical seine hauls are less than respective fisheries and areas (e.g., to be equipped with pingers. We discuss 15 minutes with the resulting catch pingers, sinking groundlines, and weak the use of pingers and their acoustic sampled and released. Scientists will links on gillnet gear). characteristics later within the look as far as field of view permits from The NEFSC will review all NEFSC- subsection titled ‘‘Cooperative Research the beach in the general sampling area affiliated research instructions and Visual Monitoring and Operational before the net is fished and will not protocols for avoiding adverse Protocols.’’ deploy if marine mammals are present. interactions with protected species. If All NEFOP protocols concerning If marine mammals are observed to be those instructions/protocols are not monitoring and reporting protected interacting with the gear, it will be lifted fully consistent with NEFOP training species interactions are followed as per and removed from the water. materials and guidance on decision- the current NEFOP Observer Manual making that arises from NEFSC (available on the internet at http:// Rotary Screw Trap Visual Monitoring protected species training, the NEFSC www.nefsc.noaa.gov/fsb/manuals/2013/ and Operational Protocols will incorporate specific language into NEFSC_Observer_Program_Manual.pdf). Visual monitoring—Sites are visually its contracts and agreements with The soak duration time is 12 to 24 surveyed for marine mammals prior to NEFSC-affiliated research partners hours. Communication with the NEFOP submerging the gear in the water requiring adherence to all required Training Lead and the vessel captain channel. The traps remain in the water training requirements, operating occurs within 24 to 48 hours prior to for an extended period of time and procedures, and reporting requirements setting of gear. During these sampling crews tend the traps on a daily for protected species. communications, the NEFOP Training basis. The researchers will modify, Operational procedures—For the Lead and Captain decide when to set the delay, or conclude the sampling period Apex Predators Bottom Longline Coastal gear, specifically taking into account depending on the numbers of marine Shark and COASTSPAN longline and any possible weather delays to avoid a mammals nearby and their potential for gillnet surveys, NEFSC partners would long soak period. They do not deploy interacting with the gear as determined implement the Move-on-Rule. During the gear if a significant weather delay is by the professional judgment of the the soak, the line is run and if any expected that would increase the researchers. marine mammals are sighted the line is preferred soak duration to greater than Operational procedures—Under most pulled immediately. On COASTSPAN 24 hours. In those situations, the gear conditions the live car (i.e., catch gillnet surveys, gillnets are continuously set times will be delayed. holding pen) is about 75 percent full of monitored during the 3-hour soak time water, which would allow any trapped by under-running it, pulling it across Fyke Net Visual Monitoring and mammals to breath until release from the boat while leaving the net ends Operational Protocols the trap. Rotary screw trap tending anchored. All animals, algae and other Visual monitoring—Fyke nets are schedules are adjusted according to objects are removed with each pass as normally set inshore by small boat conditions of the river/estuary and the net is reset into the water to crews, who will visually survey areas threats to protected species (i.e., minimize bycatch mortality. prior to deploying the nets. Monitoring presence of ESA-listed fish or marine Acoustic deterrent devices—NEFSC- is done prior to setting and during net mammals in the area). If capture occurs, affiliated cooperative research projects retrieval which is conducted every 12 to the animal is temporarily retained in a involving commercial vessels and gear, 24-hours. If marine mammals are in live tank and released as soon as as well as the NEFOP Observer Training close proximity (approximately 100 m) possible. Gillnet Surveys currently deploy of the setting location, the field team acoustic pingers on anchored sinking Cooperative Research Visual Monitoring will make a determination if the set gillnets in areas where they are required and Operational Protocols location needs to be moved. If marine by commercial fisheries to comply with mammals are observed to interact with The mitigation requirements requirements in the HPTRP (50 CFR the gear during the setting, the crew will described earlier are applicable to 229.33). We considered the use of lift and remove the gear from the water. commercial fishing vessels engaged in pingers in our notice of proposed Operational procedures—A 2-m fyke NEFSC cooperative research using rulemaking (80 FR 39558, July 9, 2015) net will be deployed with a marine trawls, dredges, longline, hook and line, and we do not discuss the potential mammal excluder device that reduces lobster pots/traps, and gillnet gears. taking of marine mammals resulting the effective mouth opening to less than These commercial fishing vessels are from NEFSC’s use of pingers further in 15 cm. The 1-m fyke net does not significantly smaller than the NOAA this document. require an excluder device as the vessels, and depending on their size and Pot/Trap Visual Monitoring and opening is 12 cm. These small openings configuration, marine mammal sighting Operational Protocols will prevent marine mammals from may be difficult to make during all entering the nets. aspects of fishing operations. Further, Several NEFSC and cooperative scientific personnel are normally research surveys use fish or lobster pots Beach Seine Visual Monitoring and restricted from the deck during gear to selectively capture species for Operational Protocols setting and haul-back operations. For all research, tagging studies, and sample Visual monitoring—Prior to setting vessel size classes, it is unlikely that the collection. Fish pots select for particular the seine nets, researchers will visually individual(s) searching for marine species by configuring the entrances, survey the area for marine mammals. mammals will have unrestricted 360 mesh, and escape tunnels (or ‘‘vents’’) to They will also observe for marine degree visibility around the vessel. allow retention of the target species, mammals continuously during However, observations during approach while excluding larger animals, and sampling. to a fishing station and during gear allowing smaller animals to escape from Operational procedures—Seines are setting and haul-back may be feasible the pot before retrieval. deployed with one end held on shore by and practicable from the wheelhouse. Visual monitoring—The NEFSC and/ a crew member and the net slowly These projects will also comply with or cooperating institutions shall initiate deployed by boat in an arc and then the TRP mitigation measures and gear marine mammal watches (visual
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observation) no less than 30 minutes Visual monitoring—The receivers are (4) A reduction in the intensity of prior to both deployment and retrieval set by small boat crews that visually exposure to stimuli expected to result in of the pot and trap gear. Marine survey the area for marine mammals incidental take (this goal may contribute mammal watches shall be conducted by prior to setting. Interactions with the to 1, above, or to reducing the severity scanning the surrounding waters with gear or boats are not expected. of behavioral harassment only). the naked eye and binoculars (or Operational Procedures—Receivers (5) Avoidance or minimization of monocular). During nighttime are anchored using a 24-pound adverse effects to marine mammal operations, visual observation shall be mushroom anchor or a 79-pound habitat, paying particular attention to conducted using the naked eye and cement mooring and attached to a the prey base, blockage or limitation of available vessel lighting. surface float by an 11/16 inch sinking passage to or from biologically Operational Procedures—The NEFSC pot warp with a weight rating of 1,200 important areas, permanent destruction and/or cooperating institutions shall pounds. Units in the estuary and bay are of habitat, or temporary disturbance of deploy pot gear as soon as is practicable equipped with whale-safe weak links habitat during a biologically important upon arrival at the sampling station. with a weight rating of 600 pounds. time. The primary purpose of conducting a Other receivers are deployed on coastal (6) For monitoring directly related to visual monitoring period is to commercial lobstermen’s fishing gears mitigation, an increase in the implement the ‘‘move-on rule.’’ The which comply with fishing regulations probability of detecting marine NEFSC and/or cooperating institutions for nearshore operations. The receivers mammals, thus allowing for more shall implement the move-on rule. If are recovered twice annually, but the effective implementation of the marine mammals are sighted near the traps are tended according to required mitigation. Based on our evaluation of the vessel before setting the gear, the fishing schedules of the fishery. NEFSC’s planned measures, as well as NEFSC, as appropriate may decide to We have carefully evaluated the other measures considered, NMFS has move the vessel away from the marine NEFSC’s planned mitigation measures determined that these mitigation mammal to a different section of the and considered a range of other measures provide the means of effecting sampling area if the animal appears to measures in the context of ensuring that the least practicable adverse impact on be at risk of interaction with the gear. If, we prescribed the means of effecting the marine mammal species or stocks and after moving on, marine mammals are least practicable adverse impact on the their habitat, paying particular attention still visible from the vessel, the NEFSC affected marine mammal species and to rookeries, mating grounds, and areas may decide to move again or to skip the stocks and their habitat. Our evaluation of similar significance. station. The NEFSC may use best of potential measures included professional judgment in making this consideration of the following factors in Description of Marine Mammals in the decision but may not elect to conduct relation to one another: (1) The manner Area of the Specified Activity the pot and trap activity when animals in which, and the degree to which, the NMFS previously reviewed the remain near the vessel. successful implementation of the NEFSC species descriptions—which If marine mammals are sighted near measure is expected to minimize summarize available information the vessel during the soak and are adverse impacts to marine mammals, (2) regarding status and trends, distribution determined to be at risk of interacting the proven or likely efficacy of the and habitat preferences, behavior and with the gear, then the NEFSC and/or specific measure to minimize adverse life history, and auditory capabilities of cooperating institutions shall carefully impacts as planned; and (3) the the potentially affected species—for retrieve the gear as quickly as possible. practicability of the measure for accuracy and completeness and refer the The NEFSC and/or cooperating applicant implementation. reader to Sections 3 and 4 of the institutions may use best professional Any mitigation measure(s) we NEFSC’s application, as well as to judgment in making this decision. prescribe should be able to accomplish, NMFS’ Stock Assessment Reports The NEFSC and/or cooperating have a reasonable likelihood of (SARs; www.nmfs.noaa.gov/pr/sars/). institutions shall ensure that surveys accomplishing (based on current We also provided information related to deploy gear fulfilling all pot/trap science), or contribute to the all species with expected potential for universal commercial gear accomplishment of one or more of the occurrence in the specified geographical configurations such as weak link general goals listed here: region where the NEFSC plans to requirements and marking requirements (1) Avoidance or minimization of conduct the specified activities, as specified by applicable take injury or death of marine mammals summarizing information related to the reduction plans as required for wherever possible (goals 2, 3, and 4 may population or stock, including PBR. commercial pot/trap fisheries. contribute to this goal). Please see Table 3 in the notice of The NEFSC shall ensure that (2) A reduction in the number (total proposed rulemaking (80 FR 39595, July cooperating institutions conducting pot number or number at biologically 9, 2015) for that information. We do not and trap surveys adhere to monitoring important time or location) of repeat that information here. and mitigation requirements and shall individual marine mammals exposed to include required protocols in all survey stimuli expected to result in incidental Potential Effects of the Specified instructions, contracts, and agreements. take (this goal may contribute to 1, Activity on Marine Mammals and Their above, or to reducing takes by Habitat Acoustic Telemetry Gear Visual behavioral harassment only). NMFS provided a summary and Monitoring and Operational Protocols (3) A reduction in the number (total discussion of the ways that components The NEFSC deploys passive acoustic number or number at biologically of the specified activity (e.g., gear telemetry receivers in many of Maine’s important time or location) of times any deployment, use of active acoustic rivers, estuaries, bays and into the Gulf individual marine mammal would be sources, and visual disturbance) may of Maine. These receivers monitor exposed to stimuli expected to result in impact marine mammals and their tagged Atlantic salmon, as well as other incidental take (this goal may contribute habitat in the notice of proposed tagged animals of collaborators along to 1, above, or to reducing takes by rulemaking (80 FR 39595, July 9, 2015). the east coast. behavioral harassment only). Specifically, we considered potential
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effects to marine mammals from ship wild by causing disruption of behavioral Estimated Take Due to Gear Interaction strike, physical interaction with various patterns, including, but not limited to, gear types, use of active acoustic migration, breathing, nursing, breeding, Historical Interactions—In order to sources, and visual disturbance of feeding, or sheltering [Level B estimate the number of potential pinnipeds, as well as effects to prey harassment].’’ Serious injury means any incidents of take that could occur by M/ SI + Level A through gear interaction, species and to acoustic habitat. We do injury that will likely result in mortality we first considered the NEFSC’s past not repeat that information here. (50 CFR 216.3). record of such incidents, and then also Estimated Take by Incidental Take of marine mammals incidental considered other species that may have Harassment, Serious Injury, or Mortality to the NEFSC’s research activities could similar vulnerabilities to the NEFSC’s Except with respect to certain occur as a result of: (1) Injury or trawl, gillnet, and fyke net gear for activities not pertinent here, the MMPA mortality due to gear interaction; (2) which we have historical interaction defines ‘‘harassment’’ as: ‘‘any act of behavioral disturbance resulting from records. We describe historical pursuit, torment, or annoyance which (i) the use of active acoustic sources (Level interactions with NEFSC research gear has the potential to injure a marine B harassment only); or (3) behavioral in Tables 1, 2, and 3 in this rule. mammal or marine mammal stock in the disturbance of pinnipeds hauled out on Available records are for the years 2004 wild [Level A harassment]; or (ii) has the shoreline resulting from close through the present. Please see the the potential to disturb a marine proximity of research vessels (Level B NEFSC’s Final PEA for specific mammal or marine mammal stock in the harassment only). locations of these incidents.
TABLE 1—HISTORICAL INTERACTIONS WITH TRAWL GEAR
Number re- Gear Survey Date Species Number killed leased alive Total
Gourock high speed Atlantic Herring Survey 10/8/2004 Short-beaked common 2 0 2 midwater rope trawl. dolphin (Western NA stock). Bottom trawl (4-seam, 3 NEFSC Standard Bot- 11/11/2007 Short-beaked common 1 0 1 bridle). tom Trawl Survey. dolphin (Western NA stock). Gourock high speed Atlantic Herring Survey 10/11/2009 Minke whale ...... 0 1 1 1 midwater rope trawl. Bottom trawl (4-seam, 3 Spring Bottom Trawl 4/4/2015 Gray seal...... 1 2 0 1 bridle). Survey.
Total individuals captured (total number of interactions given in Short-beaked common 3 0 3 parentheses) dolphin (3). 0 1 1 Minke whale (1) ......
Gray seal (1) ...... 1 0 1 1 According to the incident report, ‘‘The net’s cod end and whale were brought aboard just enough to undo the cod end and free the whale. It was on deck for about five minutes. While on deck, it was vocalizing and moving its tail up and down. The whale swam away upon release and appeared to be fine. Estimated length was 19 feet.″ The NEFSC later classified this incidental take as a serious injury using NMFS criteria for such determinations published in January 2012 (Cole and Henry, 2013). 2 The NEFSC filed an incident report for this incidental take on April 4, 2015.
TABLE 2—HISTORICAL INTERACTIONS WITH GILLNET GEAR
Number re- Gear Survey Date Species Number killed leased alive Total
Gillnet ...... COASTSPAN ...... 11/29/2008 Common Bottlenose 1 0 1 dolphin (Northern South Carolina Estu- arine System stock) 1. Gillnet ...... NEFOP Observer 5/4/2009 Gray seal...... 1 0 1 Gillnet Training Trips. Gillnet ...... NEFOP Observer 5/4/2009 Harbor porpoise...... 1 0 1 Gillnet Training Trips.
Total individuals captured (total number of interactions given in Bottlenose dolphin (1) 1 0 1 parentheses) Gray seal (1) ...... 1 0 1
Harbor porpoise (1) ..... 1 0 1 1 In 2008, the COASTSPAN gillnet survey caught and killed one common bottlenose dolphin while a cooperating institution was conducting the survey in South Carolina. This was the only occurrence of incidental take in these surveys. Although no genetic information is available from this dolphin, based on the location of the event, NMFS retrospectively assigned this mortality to the Northern South Carolina Estuarine System stock in 2015 from the previous classification as the western North Atlantic stock (Waring et al., 2014).
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TABLE 3—HISTORICAL INTERACTIONS WITH FYKE NET GEAR
Number re- Gear Survey Date Species Number killed leased alive Total
Fyke Net ...... Maine Estuaries 10/25/2010 Harbor seal...... 1 0 1 Diadromous Survey. Total ...... 0 ...... 1 0 1
The NEFSC has no recorded animal); and harbor porpoise (one total five-year period, we multiply the annual interactions with any gear other than interaction with one animal). average by five and assume that this midwater and bottom trawl, gillnet, and During one fyke net survey in 2010, number may be taken within the fyke net gears. As noted in the notice of the NEFSC recorded one interaction effective five-year period of the proposed rulemaking (80 FR 39595, July with one harbor seal. Since this proposed authorization. 9, 2015), we anticipate future recorded interaction, the NEFSC now To date, infrequent interactions of interactions with the same gear types. requires the use of marine mammal In order to use these historical excluder devices as a mitigation trawl nets, gillnets, and fyke net gears interaction records in a precautionary measure for this gear type. with marine mammals have occurred in manner as the basis for the take In order to produce the most the Atlantic coast region during NEFSC estimation process, and because we precautionary take estimates possible, research activities. The NEFSC have no specific information to indicate we use here the entirety of the data interaction rates have exhibited some whether any given future interaction available to us (i.e., 2004–15). inter-annual variation in numbers, might result in M/SI versus Level A In order to estimate the potential possibly due to changing marine harassment, we conservatively assume number of incidents of M/SI + Level A mammal densities and distributions and that all interactions equate to mortality. that could occur incidental to the dynamic oceanographic conditions. During trawl surveys, the NEFSC has NEFSC’s use of midwater and bottom This approach is precautionary. recorded interactions with short-beaked trawl, gillnet, fyke net, and longline gear Estimating takes of species captured common dolphins (Western North in the Atlantic coast region over the historically will produce an estimate Atlantic stock; two total interactions five-year period from 2015–20, we first higher than the historic average take for look at the six species described that with three individual animals); minke each species taken incidentally during have been taken historically and then whale (one total interaction with one past NEFSC research. We use this animal); and gray seal (one total evaluate the potential vulnerability of methodology to ensure accounting for interaction with one animal). Common additional species to these gears. the maximum amount of potential take dolphins are the species most likely to Table 4 in this document shows the interact with NEFSC trawl gear with an 11-year annual average captures of these in the future, as well as accounting for average of 1.5 dolphins captured per six species and the projected five-year the fluctuations in inter-annual interaction. totals for this final rule, for trawl, variability observed during the 11-year During gillnet surveys, the NEFSC has gillnet, and fyke net gear. In order to time period. Moreover, these estimates recorded interactions with short-beaked produce precautionary estimates, we are based on the assumption that annual common dolphins (Northern South calculate the annual average for the 11- effort over the proposed five-year Carolina Estuarine System stock; one year period (2004–2015) and round up authorization period will not exceed the total interaction with one animal); gray the annual to the nearest whole number. annual effort during the period 2004– seal (one total interaction with one Because the NEFSC requests take for a 2015. TABLE 4—ANNUAL AVERAGE CAPTURES (2004–15) AND PROJECTED FIVE-YEAR TOTAL FOR HISTORICALLY-CAPTURED SPECIES
Avg. per Projected Gear Species 2004 05 06 07 08 09 10 11 12 13 14 15 year 5-year total 1
Trawl ...... Short-beaked common dolphin... 2 0 0 1 0 0 0 0 0 0 0 0 0.27 5 Minke whale...... 0 0 0 0 0 1 0 0 0 0 0 0 0.09 5 Gray seal...... 0 0 0 0 0 0 0 0 0 0 0 1 0.09 5 Gillnet ...... Common bottlenose dolphin...... 0 0 0 0 1 0 0 0 0 0 0 0 0.09 2 5 Harbor porpoise...... 0 0 0 0 0 1 0 0 0 0 0 0 0.09 5 Gray seal...... 0 0 0 0 0 1 0 0 0 0 0 0 0.09 5 Fyke net...... Harbor seal...... 0 0 0 0 0 0 1 0 0 0 0 0 0.09 5 1 The estimated total is the product of the 2004–2015 annual average rounded up to the nearest whole number and multiplied by the five-year timespan of the proposed rule. 2 The projected 5-year total includes an estimate of 5 each for the Western North Atlantic offshore, the Western North Atlantic Northern Migratory Coastal, and the Western North Atlantic Southern Migratory Coastal stocks of common bottlenose dolphins. The NEFSC is not requesting take for the estuarine stocks of bottlenose dolphins for the COASTPAN surveys.
As background to the process of (e.g., behavior, abundance, density) in trawl gears, gillnets, and fyke nets, we determining which species not the areas where the NEFSC operates. first consulted NMFS’ List of Fisheries historically taken may have sufficient The NEFSC formulated the take requests (LOF), which classifies U.S. commercial vulnerability to capture in NEFSC gear for species selected by NEFSC subject fisheries into one of three categories to justify inclusion in the take matter experts who based their according to the level of incidental authorization request, we note that the selections on the best available marine mammal M/SI that is known to NEFSC is NMFS’ research arm in the information. We have concurred with occur on an annual basis over the most Greater Atlantic region which we these decisions. recent five-year period (generally) for consider as a leading source of expert In order to evaluate the potential which data has been analyzed. Despite knowledge regarding marine mammals vulnerability of additional species to no historical records of take in the
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NEFSC’s pelagic and bottom longline assigned to the respective fishery; authorization period for each of the surveys, there is a substantial record of therefore the NEFSC did not consider following species in trawls: Risso’s marine mammal take in commercial those types of take in formulating the dolphin; common bottlenose dolphin fisheries using similar gears. Therefore, requested authorization. The NEFSC (offshore and both northern and we consider potential takes through use only estimated takes for NEFSC gear southern coastal migratory stocks); of longline gear through analogy to that: (1) Had a prior take in the Atlantic-white-sided dolphin; white- commercial fisheries. NMFS provided historical record or (2) had analogous beaked dolphin; Atlantic spotted this information, as presented in the takes with commercial fishing gear. dolphin; and harbor porpoise. For these 2015 LOF (79 FR 77919; January 28, Vulnerability of analogous species to species, we propose to authorize a total 2015), in Tables 8, 9, and 10 in the different gear types is informed by the taking by M/SI + Level A of two notice of proposed rulemaking (80 FR record of interactions by the analogous individuals over the five-year timespan 39595, July 9, 2015) and do not and reference species with commercial (see Table 5). reproduce it here. fisheries using gear types similar to Other dolphin species may have Information related to incidental M/SI those used in research. Furthermore, similar vulnerabilities as those listed in relevant commercial fisheries is not, when determining the amount of take above but because of the timing and however, the sole determinant of requested, we make a distinction location of NEFSC research activities, whether it may be appropriate to between analogous species thought to the NEFSC concluded that the authorize M/SI + Level A incidental to have the same vulnerability for likelihood for take of these species was NEFSC survey operations. A number of incidental take as the reference species low (see Tables 8, 9, and 10 in the factors (e.g., species-specific knowledge and those analogous species that may notice of proposed rulemaking [80 FR regarding animal behavior, overall have a similar vulnerability. In those 39595, July 9, 2015]). Those species abundance in the geographic region, cases thought to have the same include: Pantropical spotted dolphin; density relative to NEFSC survey effort, vulnerability, the request is for the same striped dolphin; Fraser’s dolphin; feeding ecology, propensity to travel in number per year as the reference rough-toothed dolphin; Clymene groups commonly associated with other species. In those cases thought to have dolphin; and spinner dolphin. species historically taken) were taken similar vulnerability, the request is less Two pinniped species may be taken into account by the NEFSC to determine than the reference species. For example, in commercial fisheries analogous to whether a species may have a similar the NEFSC believes the vulnerability of NEFSC research trawl activities. vulnerability to certain types of gear as harbor seals to be taken in trawl gear Therefore, NEFSC requests one potential historically taken species. In some and gillnets is the same as for gray seals take each of gray and harbor seals cases, we have determined that species (one per year) and thus requests one annually in trawls over the LOA without documented M/SI may harbor seal per year (total of five over authorization period. For these nevertheless be vulnerable to capture in the authorization period) for trawl gear pinniped species, we propose to NEFSC research gear. We have also and gillnets. authorize a total taking by M/SI + Level determined that some species groups Alternatively, the potential for take of A of five individuals over the five-year with documented M/SI are not likely to Atlantic white-sided dolphins in timespan (see Table 5). be vulnerable to capture in NEFSC gear. gillnets is expected to be similar but less Gillnets—To estimate the requested In these instances, we provide further than that associated with harbor take of analogous species for gillnets, explanation later in this document. porpoises (one per year) and the the NEFSC identified several species in Those species with no records of reduced request relative to this the western North Atlantic Ocean which historical interaction with NEFSC reference species is one Atlantic white may have similar vulnerability to research gear and no documented M/SI sided dolphin over the entire five-year research-based gillnet surveys as the in relevant commercial fisheries, and for authorization period. bottlenose dolphin due to similar which the NEFSC has not requested the The approach outlined here reflects: behaviors and distributions in the authorization of incidental take, are not (1) Concern that some species with survey areas. considered further in this section. The which we have not had historical Gillnet surveys typically occur NEFSC believes generally that any sex interactions may interact with these nearshore in bays and estuaries. The or age class of those species for which gears, (2) acknowledgment of variation NEFSC caught one gray seal and one take authorization is requested could be between sets, and (3) understanding that harbor porpoise during Northeast captured. many marine mammals are not solitary Fisheries Observer Program training Non-historical interactions—In so if a set results in take, the take could gillnet surveys. The NEFSC believes that addition to those species the NEFSC has be greater than one animal. In these harbor seals have the same vulnerability directly interacted with research fishing particular instances, the NEFSC to be taken in gillnets as gray seals and gear over the 11-year period (2004– estimates the take of these species to be therefore estimates five takes of harbor 2015), the NEFSC believes it is equal to the maximum interactions per seals in gillnets over the five-year appropriate to include estimates for any given set of a reference species authorization period. For this species, future incidental takes of a number of historically taken during 2004–2015. we propose to authorize a total taking by species that have not been taken Trawls—To estimate the requested M/SI + Level A of five individuals over historically but inhabit the same areas taking of analogous species, the NEFSC the five-year timespan (see Table 5). and show similar types of behaviors and identified several species in the western Likewise, the NEFSC believes that vulnerabilities to such gear as the North Atlantic Ocean which may have Atlantic white-sided dolphins and ‘‘reference’’ species taken in the past. similar vulnerability to research-based short-beaked common dolphins have a The NEFSC believes the potential for trawls as the short-beaked common similar vulnerability to be taken in take of these other ‘‘analogous’’ species dolphin. The maximum take of short- gillnets as harbor porpoise and would be low and would occur rarely, beaked common dolphin was two bottlenose dolphins and estimates one if at all, based on lack of takes over the individuals in one trawl set in 2004. take each of Atlantic white-sided past 11 years. Therefore, on the basis of similar dolphin and short-beaked common We note that prior takes in the vulnerability, the NEFSC estimates two dolphin in gillnet gear over the five-year cooperative research fishery are potential takes over the five year authorization period. For this species,
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we propose to authorize a total taking by species are taken in commercial that may be conducted elsewhere (e.g., M/SI + Level A of one individual over longline fisheries. The 2015 LOF Garrison, 2007; Roche et al., 2007; the five-year timespan (see Table 5). classifies commercial fisheries based on Straley et al., 2014). Given the potential In 2008, the COASTSPAN gillnet prior interactions with marine for interactions, NEFSC estimates one survey caught and killed one common mammals. Although the NEFSC used take over the five-year authorization bottlenose dolphin while a cooperating this information to help make an period of the following cetaceans in institution was conducting the survey in informed decision on the probability of longline gear: Risso’s dolphin; common South Carolina. This was the only specific cetacean and large whale bottlenose dolphin (offshore and both occurrence of incidental take in these interactions with longline gear, many northern and southern coastal migratory surveys. The NEFSC is not requesting other factors were also taken into stocks); and short-beaked common any bottlenose dolphin takes from the account (e.g., relative survey effort, dolphins. For these species, we propose Northern South Carolina Estuarine survey location, similarity in gear type, to authorize a total taking by M/SI + System stock, because of limited survey animal behavior, prior history of NEFSC Level A of one individual over the five- effort in estuarine waters. The NEFSC interactions with longline gear, etc.). year timespan (see Table 5). considers there to be a remote chance of Therefore, there are several species that It is also possible that researchers may incidentally taking a bottlenose dolphin have been shown to interact with not be able to identify a captured animal from the estuarine stocks. Thus, the commercial longline fisheries but for to the species level with certainty. NEFSC is not requesting take for the which the NEFSC is not requesting take. Certain pinnipeds and small cetaceans estuarine stocks of bottlenose dolphins For example, the NEFSC is not are difficult to differentiate at sea, for the COASTPAN longline and gillnet requesting take of large whales, long- especially in low-light situations or surveys. However, in the future, if there finned pilot whales, and short-finned when a quick release is necessary. For is a bottlenose dolphin take from the pilot whales in longline gear. Although example, a captured delphinid that is estuarine stocks as confirmed by genetic these species could become entangled in struggling in the net may escape or be sampling, the NEFSC will reconsider its longline gear, the probability of freed before positive identification is take request in consultation and made. Therefore, the NEFSC has coordination with the NMFS Office of interaction with NEFSC longline gear is requested the authorization of Protected Resources and the Atlantic extremely low considering a low level of incidental M/SI + Level A for an Bottlenose Dolphin Take Reduction survey effort relative to that of unidentified delphinid by trawl (1 Team. commercial fisheries, the short length of Fyke nets—For fyke nets, the NEFSC the mainline, and low numbers of hooks individual), gillnet (1 individual), and believes that gray seals have a similar used. Based on the amount of fish longline (1 individual) gears over the vulnerability for incidental take as caught by commercial fisheries versus course of the five-year period of the harbor seals which interacted once in a NEFSC fisheries research, the proposed authorization. Similarly, the single fyke net set during the past 11 ‘‘footprint’’ of research effort compared NEFSC has requested the authorization years. For the period of this to commercial fisheries is very small. of incidental M/SI + Level A for an authorization, the NEFSC estimates one The NEFSC considered previously unidentified pinniped by trawl (1 take annually by fyke net for gray and caught species (as outlined in the 2015 individual), fyke net (1 individual), harbor seals over the five-year List of Fisheries, see Tables 8, 9, and 10 gillnet (1 individual), and longline (1 authorization period. Thus, for gray and in the notice of proposed rulemaking individual) gears. harbor seals, we propose to authorize a (80 FR 39595, July 9, 2015) in analogous Table 5 summarizes total estimated total taking by M/SI + Level A of five commercial fisheries to have a higher take due to gear interactions in the individuals of harbor and gray seals probability of take; however, all were Atlantic coast region; these estimates over the five-year timespan (see Table not included for potential take by the reflects revisions from those provided in 5). NEFSC. Historically, marine mammals the notice of proposed rulemaking (80 Longlines—While the NEFSC has not have never been caught or entangled in FR 39595, July 9, 2015) and the historically interacted with large whales NEFSC longline gear. However, such correction to the proposed rulemaking or other cetaceans in its longline gear, gear could be considered analogous to in the Federal Register on August 6, it is well documented that some of these potential commercial longline surveys 2015 (80 FR 46939).
TABLE 5—TOTAL ESTIMATED M/SI + LEVEL A DUE TO GEAR INTERACTION IN THE ATLANTIC COAST REGION, 2015–2020
Species Est. 5-year Est. 5-year Est. 5-year Est. 5-year Total, all gears total, trawl 1 total, gillnet 1 total, longline 1 total, fyke net 1
Minke whale ...... 5 0 0 0 5 Risso’s dolphin ...... 2 0 1 0 3 Atlantic white-sided dolphin ...... 2 1 0 0 3 White-beaked dolphin ...... 2 0 0 0 2 Short-beaked common dolphin ...... 5 1 1 0 7 Atlantic spotted dolphin ...... 2 0 0 0 2 Common bottlenose dolphin ...... (WNA offshore stock) 2 ...... 2 5 1 0 8 Common bottlenose dolphin ...... (WNA N. Migratory stock) 2 ...... 2 5 1 0 8 Common bottlenose dolphin ...... (WNA S. Migratory stock) 2 ...... 2 5 1 0 8 Harbor porpoise ...... 2 5 0 0 7 Unidentified delphinid ...... 1 1 1 0 3 Harbor seal ...... 5 5 0 5 15 Gray seal ...... 5 5 0 5 15
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TABLE 5—TOTAL ESTIMATED M/SI + LEVEL A DUE TO GEAR INTERACTION IN THE ATLANTIC COAST REGION, 2015– 2020—Continued
Est. 5-year Est. 5-year Est. 5-year Species Est. 5-year Total, all gears total, trawl 1 total, gillnet 1 total, longline 1 total, fyke net 1
Unidentified pinniped ...... 1 1 1 1 4 1 Please see preceding text for derivation of take estimates. 2 The NEFSC is not requesting takes for the estuarine stocks of bottlenose dolphins for the COASTPAN surveys.
Estimated Take Due to Acoustic is 160 dB re 1 mPa (rms) for Level B described above) and the assumptions Harassment harassment. Estimating the number of made that result in conservative exposures at the 160–dB received level As described in the notice of estimates in significant detail in our requires several determinations, each of proposed rulemaking (80 FR 39595, July notice of proposed rulemaking (80 FR which is described sequentially here: 39595, July 9, 2015), and do not repeat 9, 2015), we believe that NEFSC’s use of (1) A detailed characterization of the active acoustic sources has, at most, the the discussion here. acoustic characteristics of the effective As a result of discussion with NMFS potential to cause Level B harassment of sound source or sources in operation; marine mammals. In order to attempt to subject matter experts in drafting the (2) The operational areas exposed to final rule, we have determined it quantify the potential for Level B levels at or above those associated with appropriate to account for marine harassment to occur, NMFS (including Level B harassment when these sources mammal functional hearing, although the NEFSC and acoustics experts from are in operation; other parts of NMFS) developed an (3) A method for quantifying the our consideration of functional hearing analytical framework considering resulting sound fields around these is fairly simplistic. We now consider characteristics of the active acoustic sources; and functional hearing cut-offs (i.e., ranges systems described in the notice of (4) An estimate of the average density of the functional hearing groups proposed rulemaking (80 FR 39595, July for marine mammal species in each area described in the notice of proposed 9, 2015) under Description of Active of operation. rulemaking [80 FR 39595, July 9, 2015] Acoustic Sound Sources, their expected Quantifying the spatial and temporal and in Southall et al. [2007]) in a patterns of use in the Atlantic coast dimension of the sound exposure straightforward manner in these region, and characteristics of the marine footprint (or ‘‘swath width’’) of the calculations (i.e., sources are considered mammal species that may interact with active acoustic devices in operation on unlikely to lead to any Level B them. We believe that this quantitative moving vessels and their relationship to harassment if they are above or below assessment benefits from its simplicity the average density of marine mammals functional hearing cut-offs). The result and consistency with current NMFS enables a quantitative estimate of the of this consideration is recognition that acoustic guidance regarding Level B number of individuals for which sound mysticetes are unlikely to perceive these harassment but caution that, based on a levels exceed the relevant threshold for signals; therefore, receipt of the signal number of deliberately precautionary each area. The number of potential would be highly unlikely to result in assumptions, the resulting take incidents of Level B harassment is any reaction considered to be estimates should be seen as a likely ultimately estimated as the product of harassment. overestimate of the potential for the volume of water ensonified at 160 However, the known differences in behavioral harassment to occur as a dB rms or higher and the volumetric hearing sensitivities between different result of the operation of these systems. density of animals determined from marine mammal species, and within a The assessment paradigm for active simple assumptions about their vertical functional hearing range (e.g., as acoustic sources used in NEFSC stratification in the water column. reflected in auditory weighting fisheries research is relatively Specifically, reasonable assumptions functions), are not considered in straightforward and has a number of key based on what is known about diving estimates of Level B harassment by simplifying assumptions. NMFS’ behavior across different marine acoustic sources. All species are current acoustic guidance requires in mammal species were made to segregate assumed to be equally sensitive to most cases that we assume Level B those that predominately remain in the acoustic systems operating within their harassment occurs when a marine upper 200 m of the water column versus functional hearing range; therefore, the mammal receives an acoustic signal at those that regularly dive deeper during quantitative results presented here or above a simple step-function foraging and transit. We described the remain conservative with respect to threshold. For use of these active approach used (including methods for functional hearing. We provide a acoustic systems, the current threshold estimating each of the calculations summary of the results in Table 6.
TABLE 6—DENSITIES AND ESTIMATED SOURCE-, STRATUM-, AND SPECIES-SPECIFIC ANNUAL ESTIMATES OF LEVEL B HARASSMENT IN THE ATLANTIC COAST REGION AND ADJACENT OFFSHORE WATERS
Estimated Level B harassment (#s of animals) in Estimated 0–200m depth stratum Level B har- Volumetric assment in Species density (#/ >200m depth Total km3) EK60 ME70 DSM300 stratum EK60
Atlantic Coast Region Cetaceans
North Atlantic right whale ...... n/a 0 0 0 NA 1 0
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TABLE 6—DENSITIES AND ESTIMATED SOURCE-, STRATUM-, AND SPECIES-SPECIFIC ANNUAL ESTIMATES OF LEVEL B HARASSMENT IN THE ATLANTIC COAST REGION AND ADJACENT OFFSHORE WATERS—Continued
Estimated Level B harassment (#s of animals) in Estimated 0–200m depth stratum Level B har- Volumetric assment in Species density (#/ >200m depth Total 3 km ) EK60 ME70 DSM300 stratum EK60
Humpback whale ...... n/a 0 0 0 NA 1 0 Fin whale ...... n/a 0 0 0 NA 1 0 Sei whale ...... n/a 0 0 0 NA 1 0 Minke whale ...... n/a 0 0 0 NA 1 0 Blue whale ...... n/a 0 0 0 NA 1 0 Sperm whale ...... 0.00005 0 0 0 NA 2 0 Dwarf sperm whale ...... 0.0001 0 0 0 NA 2 0 Pygmy sperm whale ...... 0.0001 0 0 0 NA 2 0 Killer Whale ...... 0.00 0 0 0 NA 2 0 Pygmy killer whale ...... 0.00 0 0 0 NA 2 0 Northern bottlenose whale ...... 0.00 0 0 0 NA 2 0 Cuvier’s beaked whale ...... 0.0105 3 8 2 NA 13 Mesoplodon beaked whales ...... 0.0105 3 8 2 NA 13 Melon-headed whale ...... 0.00 0 0 0 NA 2 0 Risso’s dolphin ...... 0.011 3 8 2 NA 13 Long-finned pilot whale ...... 0.1725 41 127 35 NA 203 Short-finned pilot whale ...... 0.1725 41 127 35 NA 203 Atlantic white-sided dolphin ...... 0.122 29 90 25 NA 144 White-beaked dolphin ...... 0.0405 10 30 8 NA 48 Short-beaked common dolphin ...... 1.0575 254 780 213 NA 1,247 Atlantic spotted dolphin ...... 0.00 0 0 0 NA 2 0 Pantropical spotted dolphin ...... 0.00 0 0 0 NA 2 0 Striped dolphin ...... 0.00 0 0 0 NA 2 0 Fraser’s dolphin ...... 0.00 0 0 0 NA 2 0 Rough toothed dolphin ...... 0.00 0 0 0 NA 2 0 Clymene dolphin ...... 0.00 0 0 0 NA 2 0 Spinner dolphin ...... 0.00 0 0 0 NA 2 0 Common bottlenose dolphin (offshore) ... 0.0300 7 22 6 NA 35 Common bottlenose dolphin (coastal) ..... 0.5165 124 381 104 NA 609 Harbor Porpoise ...... 0.0965 23 71 19 NA 113
Atlantic Coast Region Pinnipeds
Harbor Seal ...... 1.422 342 1,049 287 NA 1,678 Gray Seal ...... 0.00 0 0 0 NA 2 0 Harp Seal ...... 0.00 0 0 0 NA 2 0 Hooded Seal ...... 0.00 0 0 0 NA 2 0
Offshore Area Cetaceans
North Atlantic right whale ...... n/a 0 0 0 0 2 0 Humpback whale ...... n/a 0 0 0 0 2 0 Fin whale ...... n/a 0 0 0 0 2 0 Sei whale ...... n/a 0 0 0 0 2 0 Minke whale ...... n/a 0 0 0 0 2 0 Blue whale ...... n/a 1 1 0 0 1 0 Sperm whale ...... 0.0304 12 3 0 15 15 Dwarf sperm whale ...... 0.004 0 0 0 2 2 Pygmy sperm whale ...... 0.004 0 0 0 2 2 Killer Whale ...... 0.00 0 0 0 0 2 0 Pygmy killer whale ...... 0.00 0 0 0 0 2 0 Northern bottlenose whale ...... 0.0034 0 0 0 2 2 Cuvier’s beaked whale ...... 0.0312 2 3 ...... 15 20 Mesoplodon beaked whales ...... 0.0312 2 3 0 15 20 Melon-headed whale ...... 0.00 0 0 0 0 2 0 Risso’s dolphin ...... 0.422 22 44 0 0 66 Long-finned pilot whale ...... 0.0512 3 5 0 24 32 Short-finned pilot whale ...... 0.0512 3 5 0 24 32 Atlantic white-sided dolphin ...... 0.00 0 0 0 0 2 0 White-beaked dolphin ...... 0.00 0 0 0 0 2 0 Short-beaked common dolphin ...... 0.9375 49 97 0 0 146 Atlantic spotted dolphin ...... 0.104 5 11 0 0 16 Pantropical spotted dolphin ...... 0.00 0 0 0 0 2 0 Striped dolphin ...... 1.514 79 157 0 0 236 Fraser’s dolphin ...... 0.00 0 0 0 0 2 0 Rough toothed dolphin ...... 0.008 0 1 0 0 1
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TABLE 6—DENSITIES AND ESTIMATED SOURCE-, STRATUM-, AND SPECIES-SPECIFIC ANNUAL ESTIMATES OF LEVEL B HARASSMENT IN THE ATLANTIC COAST REGION AND ADJACENT OFFSHORE WATERS—Continued
Estimated Level B harassment (#s of animals) in Estimated 0–200m depth stratum Level B har- Volumetric assment in Species density (#/ >200m depth Total 3 km ) EK60 ME70 DSM300 stratum EK60
Clymene dolphin ...... 0.00 0 0 0 0 2 0 Spinner dolphin ...... 0.00 0 0 0 0 2 0 Common bottlenose dolphin (offshore) ... 0.2630 14 27 0 0 41 n/a: not applicable 1 For mysticetes unlikely to be impacted by the predominant active acoustic sources used by the NEFSC, NMFS adjusted the take estimates from ten to zero based on functional hearing group sensitivity for mysticetes. 2 For species with unknown or very low volumetric densities, NMFS adjusted the take estimates from ten to zero because of the low probability of sighting or interaction with these species during most research cruises with the active acoustic instruments used in NEFSC research.
Estimated Take Due to Physical rotary screw trap surveys from April- anecdotal information suggests that a Disturbance June. few gray seals may share the haulout Estimated take due to physical We anticipate that trawl, fyke net, and site. These fisheries research activities disturbance could potentially occur in beach seine surveys may disturb harbor do not entail intentional approaches to the Penobscot River Estuary as a result seals and gray seals hauled out on tidal seals on ledges (i.e., boats avoid close of the unintentional approach of NEFSC ledges through physical presence of approach to tidal ledges and no gear is vessels to pinnipeds hauled out on researchers. The NEFSC conducts these deployed near the tidal ledges); only ledges. surveys in upper Penobscot Bay above behavioral disturbance incidental to The NEFSC uses four gear types (fyke Fort Point Ledge where there is only one small boat activities is anticipated. It is nets, beach seine, rotary screw traps, minor seal ledge (Odum Ledge) used by likely that some pinnipeds on the ledges and Mamou shrimp trawl) to monitor approximately 50 harbor seals (i.e., would move or flush from the haul-out fish communities in the Penobscot River based on a June 2001 survey). Although into the water in response to the Estuary. The NEFSC conducts the one cannot assume that the number of presence or sound of NEFSC survey annual surveys over specific sampling seals using this region is stable over the vessels. Behavioral responses may be periods which could use any gear type: April-November survey period; it is considered according to the scale shown Mamou trawling is conducted year- likely lower in spring and autumn. in Table 7. We consider responses round; fyke net and beach seine surveys There were no observations of gray corresponding to Levels 2–3 to are conducted April-November; and seals in the 2001 survey, but recent constitute Level B harassment.
TABLE 7—SEAL RESPONSE TO DISTURBANCE
Type of re- Level sponse Definition
1 ...... Alert ...... Seal head orientation or brief movement in response to disturbance, which may include turning head towards the disturbance, craning head and neck while holding the body rigid in a u-shaped position, changing from a lying to a sitting position, or brief movement of less than twice the animal’s body length. 2 ...... Movement ...... Movements in response to the source of disturbance, ranging from short withdrawals at least twice the animal’s body length to longer retreats over the beach, or if already moving a change of direction of greater than 90 de- grees. 3 ...... Flush ...... All retreats (flushes) to the water.
The NEFSC estimated potential percent (5 animals in a group of 50) beach seine sets, and 200 Mamou incidents of Level B harassment due to have been visibly disturbed in the past; shrimp trawls per year). physical disturbance (Table 8) using the and (2) approximately 50 harbor seals The estimated total number of following assumptions: (1) All hauled and 20 gray seals may be disturbed by instances of harassment is out seals may be disturbed by passing the passage of researchers for each approximately 20,000 for harbor seals research skiffs, although researchers survey effort (100 fyke net sets, 100 and 8,000 for gray seals annually. have estimated that only about 10
TABLE 8—ESTIMATED ANNUAL LEVEL B HARASSMENT TAKE OF PINNIPEDS ASSOCIATED WITH SURVEYS IN THE LOWER ESTUARY OF THE PENOBSCOT RIVER
Estimated Estimated Species seals on ledge Survey gear Number of Survey season instances of haulout sets harassment
Harbor seal ...... 50 Fyke net ...... 100 April-November ...... 5,000 Gray seal ...... 20 2,000
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TABLE 8—ESTIMATED ANNUAL LEVEL B HARASSMENT TAKE OF PINNIPEDS ASSOCIATED WITH SURVEYS IN THE LOWER ESTUARY OF THE PENOBSCOT RIVER—Continued
Estimated Estimated Species seals on ledge Survey gear Number of Survey season instances of haulout sets harassment
Harbor seal ...... 50 Beach seine ...... 100 April-November ...... 5,000 Gray seal ...... 20 2,000 Harbor seal ...... 50 Mamou shrimp trawl ...... 200 Year-round ...... 10,000 Gray seal ...... 20 4,000
Summary of Estimated Incidental Take take authorization on an annual basis relevant to the negligible impact Here we provide summary tables for the NEFSC in the Atlantic coast analyses. detailing the total proposed incidental region, as well as other information
TABLE 9—SUMMARY INFORMATION RELATED TO PROPOSED ANNUAL TAKE AUTHORIZATION IN THE ATLANTIC COAST REGION, 2016–2021
Proposed total Proposed total Estimated annual Level B Percent of M/SI + Level A maximum Species 1 estimated PBR 3 % PBR 4 Stock trend 5 harassment population authorization, annual M/SI + authorization 2015–2020 Level A 2
North Atlantic Right 0 0 ...... 0 0 n/a ...... ↑ whale. Humpback whale ... 0 0 ...... 0 0 n/a ...... ↑ Minke whale ...... 0 0 ...... 5 1 162 0.62 ? Sei whale ...... 0 0 ...... 0 0 n/a ...... ? Fin whale ...... 0 0 ...... 0 0 n/a ...... ? Blue whale ...... 0 0 ...... 0 0 n/a ...... ? Sperm whale ...... 15 0.65 ...... 0 0 n/a ...... ? Kogia spp...... 4 0.10 ...... 0 0 n/a ...... ? Cuvier’s beaked 33 0.51 ...... 0 0 n/a ...... ? whale. Northern bottlenose 2 undet ...... 0 0 n/a ...... ? whale. Mesoplodont 33 0.47 ...... 0 0 n/a ...... beaked whales. Bottlenose dolphin 76 0.10 ...... 6 11 2.2 561 0.39 ? (WNA Off- shore) 6. Bottlenose dolphin 609 5.27 ...... 6 11 2.2 86 2.56 ? (WNA, Northern Migratory Coast- al) 6. Bottlenose dolphin 609 6.64 ...... 6 11 2.2 63 3.49 ? (WNA, Southern Migratory Coast- al) 6. Pantropical spotted 0 0 ...... 0 0 n/a ...... ? dolphin. Atlantic spotted dol- 16 0.06 ...... 3 0.6 316 0.19 ? phin. Spinner dolphin ...... 0 undet...... 0 0 n/a ...... ? Striped dolphin ...... 236 0.45 ...... 0 0 n/a ...... ? Short-beaked com- 1,393 0.80 ...... 10 2 1,152 1.18 ? mon dolphin. White-beaked dol- 48 2.90 ...... 3 0.6 10 6.00 ? phin. Atlantic white-sided- 144 0.32...... 5 1 304 0.33 ? dolphin. Risso’s dolphin ...... 79 0.43 ...... 5 1 126 0.79 ? Fraser’s dolphin ..... 0 undet ...... 0 0 n/a ...... ? Rough-toothed dol- 1 0.37 ...... 0 0 n/a ...... ? phin. Clymene dolphin .... 0 0 ...... 0 0 n/a ...... ? Melon-headed 0 undet ...... 0 0 n/a ...... ? whale. Pygmy killer whale 0 undet ...... 0 0 n/a ...... ? Northern bottlenose 12 undet ...... 0 0 n/a ...... ? whale.
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TABLE 9—SUMMARY INFORMATION RELATED TO PROPOSED ANNUAL TAKE AUTHORIZATION IN THE ATLANTIC COAST REGION, 2016–2021—Continued
Proposed total Proposed total Estimated annual Level B Percent of M/SI + Level A maximum Species 1 estimated PBR 3 % PBR 4 Stock trend 5 harassment population authorization, annual M/SI + authorization 2015–2020 Level A 2
Long-finned pilot 235 0.89 ...... 0 0 n/a ...... ? whale. Short-finned pilot 235 1.09 ...... 0 0 n/a ...... ? whale. Harbor porpoise ..... 113 0.14 ...... 7 1.4 706 0.20 ? Gray seal ...... 7 0; 8,000 2.42 ...... 15 3.6 1,469 0.25 ↑ Harp seal ...... 0 0 ...... 0 0 n/a ...... →↑ Harbor seal ...... 7 1,678; 20,000 2.48 ...... 15 3.6 1,662 0.22 ? Unidentified ...... n/a n/a ...... n/a delphinid. Unidentified ...... n/a n/a ...... n/a pinniped. Please see preceding text for details. 1 For species with multiple stocks in the Atlantic coast regions or for species groups (Kogia spp. and Mesoplodont beaked whales), indicated level of take could occur to individuals from any stock or species (not including coastal and estuarine stocks of bottlenose dolphins). 2 This column represents the total number of incidents of M/SI + Level A that could potentially accrue to the specified species or stock and is the number carried forward for evaluation in the negligible impact analysis (later in this document). To reach this total, we add one to the total for each pinniped or delphinid that may be captured in longline or gillnet gear, one to the total for each delphinid that may be captured in trawl gear, and one pinniped that may be captured in fyke net gear. This represents the potential that the take of an unidentified pinniped or delphinid could accrue to any given stock captured in that gear. The proposed take authorization is formulated as a five-year total; the annual average is used only for purposes of negligible impact analysis. We recognize that portions of an animal may not be taken in a given year. 3 See Table 3 in the proposed notice of rulemaking and following discussion for more detail regarding PBR. 4 Estimated maximum annual M/SI + Level A expressed as a percentage of PBR. 5 See relevant SARs for more information regarding stock status and trends. Interannual increases may not be interpreted as evidence of a trend. 6 For these stocks of bottlenose dolphins, the estimated annual maximum numbers of M/SI + Level A reflect the stock-specific trawl estimate (2), plus five for gillnet take, plus one for longline take, plus three for the potential take of one unidentified delphinid by trawl, gillnet, and longline. 7 The first number represents estimated annual Level B take by acoustic sources. The second number represents estimated annual Level B take by the physical disturbance during surveys in Penobscot Bay.
Analyses and Determinations marine mammals that might be ‘‘taken’’ below the lower limit of its Optimum Here we provide negligible impact by mortality, serious injury, and Level A Sustainable Population (OSP) level. analyses and small numbers analyses for or Level B harassment, we consider That concept (PBR) was incorporated in the Atlantic coast region. Unless other factors, such as the likely nature the 1994 amendments to the MMPA, otherwise specified, the discussion of any behavioral responses (e.g., wherein Congress enacted MMPA below is intended to apply to all of the intensity, duration), the context of any sections 117 and 118, establishing a new species for which take is authorized, such responses (e.g., critical regime governing the incidental taking i.e., those discussed previously and reproductive time or location, of marine mammals in commercial indicated in Table 9 given that the migration), as well as effects on habitat. fishing operations and stock anticipated effects of these activities are We also evaluate the number, intensity, assessments. expected to be similar in nature, and and context of estimated takes by PBR, which is defined by the MMPA there is no information about the size, evaluating this information relative to (16 U.S.C. 1362(20)) as ‘‘the maximum status, or structure of any species or population status. The impacts from number of animals, not including stock that would lead to a different other past and ongoing anthropogenic natural mortalities, that may be removed analysis. In some cases we add species- activities are incorporated into these from a marine mammal stock while specific factors. analyses via their impacts on the allowing that stock to reach or maintain environmental baseline (e.g., as its optimum sustainable population,’’ is Negligible Impact Analyses reflected in the density/distribution and one tool that can be used to help NMFS has defined ‘‘negligible status of the species, population size evaluate the effects of M/SI on a marine impact’’ in 50 CFR 216.103 as ‘‘. . . an and growth rate). mammal stock. OSP is defined by the impact resulting from the specified In 1988, Congress amended the MMPA (16 U.S.C. 1362(9)) as ‘‘the activity that cannot be reasonably MMPA, with provisions for the number of animals which will result in expected to, and is not reasonably likely incidental take of marine mammals in the maximum productivity of the to, adversely affect the species or stock commercial fishing operations. Congress population or the species, keeping in through effects on annual rates of directed NMFS to develop and mind the carrying capacity of the habitat recruitment or survival.’’ A negligible recommend a new long-term regime to and the health of the ecosystem of impact finding is based on the lack of govern such incidental taking (see which they form a constituent element.’’ likely adverse effects on annual rates of MMC, 1994). The need to set allowable A primary goal of the MMPA is to recruitment or survival (i.e., population- take levels incidental to commercial ensure that each stock of marine level effects). An estimate of the number fishing operations led NMFS to suggest mammal either does not have a level of of takes alone is not enough information a new and simpler conceptual means for human-caused M/SI that is likely to on which to base an impact assuring that incidental take does not cause the stock to be reduced below its determination. In addition to cause any marine mammal species or OSP level or, if the stock is depleted considering estimates of the number of stock to be reduced or to be maintained (i.e., below its OSP level), does not have
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a level of human-caused mortality and entirety of our impact assessment, but occurrence in the areas where the serious injury that is likely to delay rather is utilized as a known, NEFSC operates. The sources restoration of the stock to OSP level by quantitative metric for evaluating considered here have moderate to high more than ten percent in comparison whether the proposed activities are output frequencies (10 to 200 kHz), with recovery time in the absence of likely to have a population-level effect generally short ping durations, and are human-caused M/SI. on the affected marine mammal stocks. typically focused (highly directional) to PBR appears within the MMPA only For the purposes of analyzing this serve their intended purpose of in section 117 (relating to periodic stock specified activity, NMFS acknowledges mapping specific objects, depths, or assessments) and in portions of section that some of the fisheries research environmental features. In addition, 118 describing requirements for take activities use similar gear and may have some of these sources can be operated reduction plans for reducing marine similar effects, but on a smaller scale, as in different output modes (e.g., energy mammal bycatch in commercial marine mammal take by commercial can be distributed among multiple fisheries. PBR was not designed as an fisheries. output beams) that may lessen the absolute threshold limiting human Species/Group Specific Analysis—To likelihood of perception by and activities, but as a means to evaluate the avoid repetition, the majority of our potential impacts on marine mammals relative impacts of those activities on determinations apply to all the species in comparison with the quantitative marine mammal stocks. Specifically, listed in Table 9, given that the estimates that guide our take assessing M/SI relative to a stock’s PBR anticipated effects of the NEFSC authorization. may signal to NMFS the need to research activities are expected to be In particular, low-frequency hearing establish take reduction teams in relatively similar in nature. Where there specialists (i.e., mysticetes) are less commercial fisheries and may assist are meaningful differences between likely to perceive or, given perception, NMFS and existing take reduction teams species or stocks, or groups of species, to react to these signals. These groups in the identification of measures to in anticipated individual responses to have reduced functional hearing at the reduce and/or minimize the taking of activities, impact of expected take on higher frequencies produced by active marine mammals by commercial the population due to differences in acoustic sources considered here (e.g., fisheries to a level below a stock’s PBR. population status, or impacts on habitat, primary operating frequencies of 38–200 That is, where the total annual human- we describe them within the section or kHz) and, based purely on their auditory caused M/SI exceeds PBR, NMFS is not within a separate sub-section. See the capabilities, the potential impacts are required to halt fishing activities Brief Background on Sound section likely much less (or non-existent). contributing to total M/SI but rather earlier in the notice of proposed However, for purposes of this analysis, may prioritize working with a take rulemaking (80 FR 39542, July 9, 2015) we assume that the take levels proposed reduction team to further mitigate the for a description of marine mammal for authorization would not occur for effects of fishery activities via additional functional hearing groups as originally mysticetes. As described previously, bycatch reduction measures. designated by Southall et al. (2007). there is some minimal potential for Since the introduction of PBR, NMFS Acoustic Effects—Please refer to Table temporary effects to hearing for certain has used the concept almost entirely 9 for information relating to this marine mammals (i.e., odontocete within the context of implementing analysis. As described in greater depth cetaceans), but most effects would likely sections 117 and 118 and other previously (see Acoustic Effects, in the be limited to temporary behavioral commercial fisheries management- notice of proposed rulemaking (80 FR disturbance. Effects on individuals that related provisions of the MMPA, 39542, July 9, 2015)), we do not believe are taken by Level B harassment will including those within section that the NEFSC’s use of active acoustic likely be limited to reactions such as 101(a)(5)(E) related to the taking of ESA- sources has the likely potential to cause increased swimming speeds, increased listed marine mammals incidental to any effect exceeding Level B harassment surfacing time, or decreased foraging (if commercial fisheries (64 FR 28800; May of marine mammals. In addition, for the such activity were occurring), reactions 27, 1999). The MMPA requires that PBR majority of species, the proposed annual that are considered to be of low severity be estimated in stock assessment reports take by Level B harassment is very low (e.g., Southall et al., 2007). There is the and that it be used in applications in relation to the population abundance potential for behavioral reactions of related to the management of take estimate (less than 7.5 percent) for each greater severity, including incidental to commercial fisheries (i.e., stock. displacement, but because of the the take reduction planning process We have produced what we believe to directional nature of the sources described in section 118 of the MMPA. be conservative estimates of potential considered here and because the source Although NMFS has not historically incidents of Level B harassment. The is itself moving, these outcomes are applied PBR outside the context of procedure for producing these unlikely and would be of short duration sections 117 and 118, NMFS recognizes estimates, described in detail in the if they did occur. Although there is no that as a quantitative tool, PBR may be notice of proposed rulemaking (80 FR information on which to base any useful in certain instances for evaluating 39542, July 9, 2015) and summarized distinction between incidents of the impacts of other human-caused earlier in the Estimated Take Due to harassment and individuals harassed, activities on marine mammal stocks. In Acoustic Harassment section, represents the same factors, in conjunction with this analysis, we consider incidental M/ NMFS’ best effort towards balancing the the fact that NEFSC survey effort is SI relative to PBR for each affected need to quantify the potential for widely dispersed in space and time, stock, in addition to considering the occurrence of Level B harassment due to indicate that repeated exposures of the interaction of those removals with production of underwater sound with a same individuals would be very incidental taking of that stock by general lack of information related to unlikely. harassment, within our evaluation of the the specific way that these acoustic Take by M/SI + Level A—We now likely impacts of the proposed activities signals, which are generally highly consider the level of taking by M/SI + on marine mammal stocks and in directional and transient, interact with Level A proposed for authorization. determining whether those impacts are the physical environment and to a First, it is likely that required injury likely to be negligible. Our use of PBR meaningful understanding of marine determinations will show some in this case does not make up the mammal perception of these signals and undetermined number of gear
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interactions to result in Level A reports from previous monitoring show The total amount of taking proposed for harassment rather than serious injury; that the pinnipeds returned to the authorization is less than 6.0 percent for therefore, our authorized take numbers various sites and did not permanently all stocks. are overestimates with regard solely to abandon haul-out sites after the NEFSC Based on the analysis contained M/SI. In addition, we note that these conducted their research activities. herein of the likely effects of the take levels are likely precautionary Based on the following factors, the specified activity on marine mammals overall when considering that: (1) NEFSC’s research activities are not and their habitat, and taking into Estimates for historically taken species likely to cause permanent abandonment consideration the implementation of the were developed assuming that the of the haulout areas, injury, serious proposed mitigation measures, we find annual average number of takes from injury, or mortality because: (1) The that small numbers of marine mammals 2004–2015, would occur in each year effects of the research activities would will be taken relative to the populations from 2015–20; and that (2) the majority be limited to short-term startle of the affected species or stocks in the of species for which take authorization responses and localized behavioral Atlantic coast region. is proposed have never been taken in changes due to the short and sporadic NEFSC surveys. duration of the research activities; (2) Monitoring and Reporting However, assuming that all of the minor and brief responses, such as In order to issue an incidental take takes proposed for authorization short-duration startle or alert reactions, authorization for an activity, section actually occur, we assess these are not likely to constitute disruption of 101(a)(5)(A) of the MMPA states that quantitatively by comparing to the behavioral patterns, such as migration, NMFS must set forth ‘‘requirements calculated PBR for each stock. Estimated nursing, breeding, feeding, or sheltering; pertaining to the monitoring and M/SI + Level A for all stocks is and (3) the availability of alternate areas reporting of such taking.’’ The MMPA significantly less than PBR (less than six for pinnipeds to avoid the resultant implementing regulations at 50 CFR percent for each stock). visual disturbances from the research 216.104 (a)(13) indicate that requests for Large whales (North Atlantic right, operations. incidental take authorizations must blue, fin, sei, humpback, and sperm Based on the analysis contained include the suggested means of whales)—Due to their very low numbers herein of the likely effects of the accomplishing the necessary monitoring within the NEFSC research area and a specified activity on marine mammals and reporting that will result in tendency to occur primarily in waters and their habitat, and taking into increased knowledge of the species and outside of the NEFSC research area, consideration the implementation of the of the level of taking or impacts on blue, sperm, and sei whales rarely planned mitigation measures, we find populations of marine mammals that are coincide with NEFSC fisheries research that the total marine mammal take from expected to be present in the proposed vessels. Thus, we anticipate that any NEFSC fisheries research activities will action area. potential gear interactions are unlikely. have a negligible impact on the affected Any monitoring requirement we There have been no entanglements or marine mammal species or stocks in the prescribe should improve our takes of blue, sperm, or sei whales or Atlantic coast region. In summary, this understanding of one or more of the any ESA-listed marine mammals in finding of negligible impact is founded following: NEFSC fisheries research. Thus, there on the following factors: (1) The • Occurrence of marine mammal are no requested take by M/SI + Level possibility of injury, serious injury, or species in action area (e.g., presence, A of these species during the next five mortality from the use of active acoustic abundance, distribution, density). years. Given the mitigation measures in devices may reasonably be considered • Nature, scope, or context of likely place and the lack of historical takes, discountable; (2) the anticipated marine mammal exposure to potential the NEFSC does not expect to have any incidents of Level B harassment from stressors/impacts (individual or adverse gear interactions with ESA- the use of active acoustic devices cumulative, acute or chronic), through listed cetaceans in research surveys. consist of, at worst, temporary and better understanding of: (1) Action or Long- and short-finned pilot whales— relatively minor modifications in environment (e.g., source Due to the low levels of survey effort in behavior; (3) the predicted number of characterization, propagation, ambient hotspot areas for pilot whales, incidents of combined Level A noise); (2) affected species (e.g., life adherence to gear requirements for harassment, serious injury, and history, dive patterns); (3) co-occurrence longline surveys, low numbers of hooks mortality are at insignificant levels of marine mammal species with the and sets used in longline surveys, and relative to all affected stocks; and (4) the action; or (4) biological or behavioral short soak times with continuous presumed efficacy of the planned context of exposure (e.g., age, calving, or monitoring during gillnet surveys, we mitigation measures in reducing the feeding areas). anticipate that any potential gear effects of the specified activity to the • Individual responses to acute interactions are unlikely. There have level of least practicable adverse impact. stressors, or impacts of chronic been no entanglements or takes of long- In addition, no M/SI is proposed for exposures (behavioral or physiological). or short-finned pilot whales in NEFSC authorization for any species or stock • How anticipated responses to fisheries research. Thus, there are no that is listed under the ESA. In stressors impact either: (1) long-term requested take by M/SI + Level A of combination, we believe that these fitness and survival of an individual; or these species during the next five years. factors demonstrate that the specified (2) population, species, or stock. Take by Physical Disturbance—We activity will have only short-term effects • Effects on marine mammal habitat note that the NEFSC conducts one set of on individuals (resulting from Level B and resultant impacts to marine research activities where the physical harassment) and that the total level of mammals. presence of researchers may result in taking will not impact rates of • Mitigation and monitoring Level B incidental harassment of recruitment or survival sufficiently to effectiveness. pinnipeds on haulouts. This level of result in population-level impacts. The NEFSC plans to make more periodic incidental harassment would systematic its training, operations, data have temporary effects and would not Small Numbers Analyses collection, animal handling and be expected to alter the continued use Please see Table 9 for information sampling protocols, etc. in order to of the tidal ledges by seals. Anecdotal relating to this small numbers analysis. improve its ability to understand how
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mitigation measures influence and instructive examples where use of Reporting interaction rates and ensure its research best professional judgment was As is normally the case, NEFSC will operations are conducted in an determined to be successful or coordinate with the relevant stranding informed manner and consistent with unsuccessful. We recognize that many coordinators for any unusual marine lessons learned from those with factors come into play regarding mammal behavior and any stranding, experience operating these gears in decision-making at sea and that it is not beached live/dead, or floating marine close proximity to marine mammals. It practicable to simplify what are mammals that are encountered during is in this spirit that NMFS and the inherently variable and complex field research activities. The NEFSC will NEFSC crafted the monitoring situational decisions into rules that may follow a phased approach with regard to requirements described here. be defined on paper. However, it is our the cessation of its activities and/or Visual Monitoring intent that use of best professional reporting of such events, as described in judgment be an iterative process from Marine mammal watches are a the proposed regulatory texts following year to year, in which any at-sea this preamble. In addition, Chief standard part of conducting fisheries decision-maker (i.e., responsible for research activities, and are implemented Scientists (or cruise leader, CS) will decisions regarding the avoidance of provide reports to NEFSC leadership as described previously in Mitigation. marine mammal interactions with Marine mammal watches and and to the Office of Protected Resources survey gear through the application of (OPR) by event, survey leg, and cruise. monitoring occur prior to deployment of best professional judgment) learns from gear, and they continue until gear is As a result, when marine mammals the prior experience of all relevant interact with survey gear, whether killed brought back on board. Office of Marine NEFSC personnel (rather than from Aviation and Operations personnel or released alive, a report provided by solely their own experience). The the CS will fully describe any operating NOAA vessels are required to outcome should be increased monitor interactions with protected observations of the animals, the context transparency in decision-making (vessel and conditions), decisions made species (and report interactions to the processes where best professional NEFSC Director). Similarly, there is a and rationale for decisions made in judgment is appropriate and, to the vessel and gear handling. The condition of grant and contract awards extent possible, some degree of for monitoring of protected species circumstances of these events are standardization across common critical in enabling the NEFSC and OPR takes. situations, with an ultimate goal of In the Penobscot Bay only, the NEFSC to better evaluate the conditions under reducing marine mammal interactions. will monitor any potential disturbance which takes are most likely occur. We It is the responsibility of the NEFSC to of pinnipeds on ledges, paying believe in the long term this will allow facilitate such exchange. particular attention to the distance at the avoidance of these types of events in which different species of pinniped are Handling Procedures and Data the future. disturbed. Disturbance will be recorded Collection The NEFSC will submit annual according to the three-point scale, summary reports to OPR including: (1) representing increasing seal response to Improved standardization of handling Annual line-kilometers surveyed during disturbance, shown in Table 7. procedures were discussed previously which the EK60, ME70, DSM900 (or in Mitigation. In addition to the benefits equivalent sources) were predominant; Training implementing these protocols are (2) summary information regarding use The NEFSC anticipates that additional believed to have on the animals through of all NEFSC-specific gears, including: information on practices to avoid increased post-release survival, NEFSC longline (including bottom and vertical marine mammal interactions can be believes adopting these protocols for lines), gillnet, fyke net, and trawl gleaned from training sessions and more data collection will also increase the (including bottom trawl) gear, including systematic data collection standards. information on which ‘‘serious injury’’ number of sets, hook hours, tows, etc., The NEFSC will conduct annual determinations (NMFS, 2012a, b) are specific to each gear; (3) accounts of all trainings for all chief scientists and based and improve scientific knowledge incidents of marine mammal other personnel who may be responsible about marine mammals that interact interactions, including circumstances of for conducting dedicated marine with fisheries research gears and the the event and descriptions of any mammal visual observations to explain factors that contribute to these mitigation procedures implemented or mitigation measures and monitoring and interactions. NEFSC personnel will be not implemented and why; (4) summary reporting requirements, mitigation and provided standard guidance and information related to any disturbance monitoring protocols, marine mammal training regarding handling of marine of pinnipeds during the Penobscot Bay identification, recording of count and mammals, including how to identify surveys, including event-specific total disturbance observations (relevant to different species, bring an individual counts of animals present, counts of Penobscot Bay surveys), completion of aboard a vessel, assess the level of reactions according to the three-point datasheets, and use of equipment. Some consciousness, remove fishing gear, scale shown in Table 7, and distance of of these topics may be familiar to return an individual to water and log closest approach; and (5) a written NEFSC staff, who may be professional activities pertaining to the interaction. evaluation of the effectiveness of NEFSC biologists; the NEFSC shall determine NEFSC will record interaction mitigation strategies in reducing the the agenda for these trainings and information on either existing data number of marine mammal interactions ensure that all relevant staff have forms created by other NMFS programs with survey gear, including best necessary familiarity with these topics. or will develop their own standardized professional judgment and suggestions The NEFSC will also dedicate a forms. To aid in serious injury for changes to the mitigation strategies, portion of training to discussion of best determinations and comply with the if any. The period of reporting will be professional judgment (which is current NMFS Serious Injury Guidelines a one year period beginning at the date recognized as an integral component of (NMFS, 2012a, b), researchers will also of issuance of the LOA. The NEFSC mitigation implementation; see answer a series of supplemental must submit the report not less than ‘‘Mitigation’’), including use in any questions on the details of marine ninety days following the end of the incidents of marine mammal interaction mammal interactions. reporting period. Submission of this
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information is in service of an adaptive management allows NMFS OPR to the availability of such species or stocks management framework allowing NMFS consider new information from different for taking for subsistence purposes. to make appropriate modifications to sources to determine (with input from Endangered Species Act (ESA) mitigation and/or monitoring strategies, the NEFSC regarding practicability) on as necessary, during the five-year period an annual or biennial basis if mitigation There are multiple marine mammal of validity for these regulations. or monitoring measures should be species listed under the ESA with NMFS has established a formal modified (including additions or confirmed or possible occurrence in the incidental take reporting system, the deletions). Mitigation measures could be specified geographical region. In the Protected Species Incidental Take modified if new data suggests that such Northeast Region, research surveys (PSIT) database, requiring that modifications would have a reasonable occur in two areas that have been incidental takes of protected species be likelihood of reducing adverse effects to designated as critical habitat for the reported within 48 hours of the marine mammals and if the measures North Atlantic right whale (NOAA, occurrence. The PSIT generates are practicable. 1994). These are the Cape Cod Bay automated messages to NMFS staff, The following are some of the (CCB) Critical Habitat Area and the alerting them to the event and to the fact possible sources of applicable data to be Great South Channel (GSC) Critical Habitat Area. NMFS OPR initiated that updated information describing the considered through the adaptive consultation with NMFS’ Greater circumstances of the event has been management process: (1) results from Atlantic Regional Office (GARFO) under entered into the database. The PSIT and monitoring reports, as required by section 7 of the ESA on the CS reports represent not only valuable MMPA authorizations; (2) results from promulgation of a five-year regulation real-time reporting and information general marine mammal and sound and the subsequent issuance of an LOA dissemination tools but also serve as an research; and (3) any information which to the NEFSC under section 7 of the archive of information that may be reveals that marine mammals may have ESA. In June 2016, the GARFO issued mined in the future to study why takes been taken in a manner, extent, or a biological opinion to OPR and the occur by species, gear, region, etc. number not authorized by this The NEFSC will also collect and NEFSC (concerning conduct of the regulation or subsequent LOA. report all necessary data, to the extent specified activities) which concluded practicable given the primacy of human Changes to the Proposed Regulations that the issuance of the authorization is safety and the well-being of captured or not likely to jeopardize the continued entangled marine mammals, to facilitate As a result of clarifying discussions existence of any listed marine mammal serious injury (SI) determinations for with NEFSC, we made certain changes species is not likely to adversely affect marine mammals that are released alive. to the proposed regulations as described any listed marine mammal species. The NEFSC will require that the CS here. These changes are considered opinion also concluded that the complete data forms (already developed minor and do not affect any of our issuance of the authorization would not and used by commercial fisheries preliminary determinations. affect any designated critical habitat. observer programs) and address Mitigation Measures for Pot/Trap Gear supplemental questions, both of which National Environmental Policy Act have been developed to aid in SI As described in the notice of (NEPA) determinations. NEFSC understands the proposed rulemaking (80 FR 39546– In compliance with the National critical need to provide as much 39560; July 9, 2015), NEFSC engages in Environmental Policy Act of 1969 (42 relevant information as possible about cooperative research activities and U.S.C. 4321 et seq.), as implemented by marine mammal interactions to inform observer training that may use different the regulations published by the CEQ decisions regarding SI determinations. gear types and vary from year to year, (40 CFR parts 1500–1508), the NEFSC In addition, the NEFSC will perform all while remaining within the overall prepared a PEA to consider the direct, necessary reporting to ensure that any scope of activity described and analyzed indirect and cumulative effects to the incidental M/SI is incorporated as for NEFSC. Within the scope of the human environment resulting from the appropriate into relevant SARs. proposed rule, NEFSC plans to conduct described research activities. OPR made or fund observer training using pot/trap NEFSC’s draft PEA available to the Adaptive Management gear within the period of validity for public for review and comment, in The final regulation governing the these regulations; therefore, it is relation to its suitability for adoption by take of marine mammals incidental to appropriate to specify mitigation OPR in order to assess the impacts to NEFSC fisheries research survey measures specific to this gear type. the human environment of issuance of operations in the specified geographical Inclusion of mitigation measures a regulation and subsequent Letter of region contains an adaptive specific to pot/trap gear does not affect Authorization to the NEFSC. Also in management component. The inclusion any of our determinations, and does not compliance with NEPA and the CEQ of an adaptive management component reflect an increase in the total amount regulations, as well as NOAA is both valuable and necessary within or type of activity anticipated or change Administrative Order 216–6, OPR has the context of five-year regulation for in the extent or type of taking reviewed NEFSC’s PEA, determined it activities that have been associated with anticipated. to be sufficient, and adopted that PEA marine mammal mortality. Impact on Availability of Affected and signed a Finding of No Significant The reporting requirements associated Species for Taking for Subsistence Uses Impact (FONSI) on August 2, 2016. The with this final rule are designed to NEFSC’s EA and OPR’s FONSI for this provide OPR with monitoring data from There are no relevant subsistence uses action may be found on the Internet at the previous year to allow consideration of marine mammals implicated by these www.nmfs.noaa.gov/pr/permits/ of whether any changes are appropriate. actions, in the specified geographical incidental/research.htm. NMFS OPR and the NEFSC will meet region for which we are issuing this annually to discuss the monitoring regulation. Therefore, we have Classification reports and current science and whether determined that the total taking of Per the procedures established to mitigation or monitoring modifications affected species or stocks would not implement Executive Order 12866, the are appropriate. The use of adaptive have an unmitigable adverse impact on Office of Management and Budget has
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determined that this rule is not 219.37 Letters of Authorization. (c) Take a marine mammal specified significant. 219.38 Renewals and modifications of in § 219.33(b) if NMFS determines such Pursuant to section 605(b) of the Letters of Authorization. taking results in more than a negligible Regulatory Flexibility Act (RFA), the 219.39—219.40 [Reserved] impact on the species or stocks of such Chief Counsel for Regulation of the Authority: 16 U.S.C. 1361 et seq. marine mammal; Department of Commerce has certified (d) Take a marine mammal specified to the Chief Counsel for Advocacy of the Subpart D—Taking Marine Mammals in § 219.33(b) if NMFS determines such Small Business Administration that this Incidental to Northeast Fisheries taking results in an unmitigable adverse rule will not have a significant Science Center Fisheries Research in impact on the species or stock of such economic impact on a substantial the Atlantic Coast Region marine mammal for taking for number of small entities. The factual § 219.31 Specified activity and specified subsistence uses; or basis for this certification was published geographical region. (e) Violate, or fail to comply with, the with the proposed rule and is not (a) Regulations in this subpart apply terms, conditions, and requirements of repeated here. No comments were only to the National Marine Fisheries this subpart or a LOA issued under received regarding the economic impact Service’s (NMFS) Northeast Fisheries § 216.106 of this chapter and § 219.37. of this final rule. As a result, a final Science Center (NEFSC) and those § 219.35 Mitigation requirements. regulatory flexibility analysis is not persons it authorizes or funds to required and one was not prepared. conduct activities on its behalf for the When conducting the activities This rule does not contain a taking of marine mammals that occurs identified in § 219.31(a), the mitigation collection-of-information requirement in the area outlined in paragraph (b) of measures contained in any LOA issued subject to the provisions of the this section and that occurs incidental under § 216.106 of this chapter and Paperwork Reduction Act (PRA) to research survey program operations. § 219.37 must be implemented. These because the applicant is a federal (b) The taking of marine mammals by mitigation measures shall include but agency. Notwithstanding any other NEFSC may be authorized in a Letter of are not limited to: provision of law, no person is required Authorization (LOA) only if it occurs (a) General conditions: to respond to nor shall a person be within the Atlantic coast region. (1) NEFSC shall take all necessary subject to a penalty for failure to comply measures to coordinate and with a collection of information subject § 219.32 Effective dates. communicate in advance of each to the requirements of the PRA unless Regulations in this subpart are specific survey with the National that collection of information displays a effective September 12, 2016 through Oceanic and Atmospheric currently valid OMB control number. September 9, 2021. Administration’s (NOAA) Office of Marine and Aviation Operations List of Subjects in 50 CFR Part 219 § 219.33 Permissible methods of taking. (OMAO) or other relevant parties on Exports, Fish, Imports, Indians, (a) Under LOAs issued pursuant to non-NOAA platforms to ensure that all Labeling, Marine mammals, Penalties, § 216.106 of this chapter and § 219.7, mitigation measures and monitoring Reporting and recordkeeping the Holder of the LOA (hereinafter requirements described herein, as well requirements, Seafood, Transportation. ‘‘NEFSC’’) may incidentally, but not as the specific manner of intentionally, take marine mammals Dated: August 2, 2016. implementation and relevant event- within the area described in § 219.31(b) contingent decision-making processes, Samuel D. Rauch III, by Level B harassment associated with Deputy Assistant Administrator for are clearly understood and agreed upon. use of active acoustic systems and (2) NEFSC shall coordinate and Regulatory Programs, National Marine physical or visual disturbance of Fisheries Service. conduct briefings at the outset of each hauled-out pinnipeds and by Level A For reasons set forth in the preamble, survey and as necessary between the harassment, serious injury, or mortality ship’s crew (Commanding Officer/ the NMFS amends 50 CFR part 219 as associated with use of trawl, dredge, follows: master or designee(s), contracted vessel bottom and pelagic longline, gillnet, pot owners, as appropriate) and scientific and trap, fyke net, beach seine, and PART 219—REGULATIONS party or in order to explain rotary screw trap gears, provided the responsibilities, communication GOVERNING THE TAKING AND activity is in compliance with all terms, IMPORTING OF MARINE MAMMALS procedures, marine mammal monitoring conditions, and requirements of the protocol, and operational procedures. regulations in this subpart and the ■ 1. The authority citation for part 219 (3) NEFSC shall coordinate as appropriate LOA, provided the activity continues to read as follows: necessary on a daily basis during survey is in compliance with all terms, cruises with OMAO personnel or other Authority: 16 U.S.C. 1361 et seq. conditions, and requirements of the relevant personnel on non-NOAA ■ regulations in this subpart and the 2. Add subpart D to part 219 to read platforms to ensure that requirements, appropriate LOA. as follows: procedures, and decision-making Subpart D—Taking Marine Mammals § 219.34 Prohibitions. processes are understood and properly Incidental to Northeast Fisheries Science Notwithstanding takings implemented. Center Fisheries Research in the Atlantic (4) When deploying any type of Coast Region contemplated in § 219.31 and authorized by a LOA issued under sampling gear at sea, NEFSC shall at all Sec. § 216.106 of this chapter and § 219.7, no times monitor for any unusual 219.31 Specified activity and specified person may, in connection with the circumstances that may arise at a geographical region. activities described in § 219.31: sampling site and use best professional 219.32 Effective dates. judgment to avoid any potential risks to 219.33 Permissible methods of taking. (a) Take any marine mammal not 219.34 Prohibitions. specified in § 219.33(b); marine mammals during use of all 219.35 Mitigation requirements. (b) Take any marine mammal research equipment. 219.36 Requirements for monitoring and specified in § 219.33(b) in any manner (5) All vessels must comply with reporting. other than as specified; applicable and relevant take reduction
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plans, including any required use of (2) NEFSC shall initiate marine decide to move the vessel away from the acoustic deterrent devices. mammal watches (visual observation) marine mammal to a different section of (6) All vessels must comply with prior to sampling. Marine mammal the sampling area if the animal appears applicable speed restrictions. watches shall be conducted by scanning to be at risk of interaction with the gear. (7) NEFSC shall implement handling the surrounding waters with the naked If, after moving on, marine mammals are and/or disentanglement protocols as eye and binoculars (or monocular). still visible from the vessel, NEFSC may specified in the guidance provided to During nighttime operations, visual decide to move again or to skip the NEFSC survey personnel. observation shall be conducted using station. NEFSC may use best (b) Trawl survey protocols: the naked eye and available vessel professional judgment in making this (1) NEFSC shall conduct trawl lighting. decision but may not elect to conduct operations as soon as is practicable (3) NEFSC shall implement the longline survey activity when animals upon arrival at the sampling station. ‘‘move-on rule.’’ If marine mammals are remain near the vessel. (2) NEFSC shall initiate marine sighted around the vessel before setting (4) For the Apex Predators Bottom mammal watches (visual observation) the gear, the NEFSC may decide to move Longline Coastal Shark Survey, if one or prior to sampling. Marine mammal the vessel away from the marine more marine mammals are observed watches shall be conducted by scanning mammal to a different section of the within 1 nautical mile (nmi) of the the surrounding waters with the naked sampling area if the animal appears to planned location in the 30 minutes eye and binoculars (or monocular). be at risk of interaction with the gear. If, before gear deployment, NEFSC shall During nighttime operations, visual after moving on, marine mammals are transit to a different section of the observation shall be conducted using still visible from the vessel, NEFSC may sampling area to maintain a minimum the naked eye and available vessel decide to move again or to skip the set distance of 1 nmi from the observed lighting. station. NEFSC may use best marine mammals. If, after moving on, (3) NEFSC shall implement the professional judgment in making this marine mammals remain within 1 nmi, ‘‘move-on rule.’’ If a marine mammal is decision but may not elect to conduct NEFSC may decide to move again or to sighted around the vessel before setting dredge survey activity when animals skip the station. NEFSC may use best professional judgment in making this the gear, NEFSC may decide to move the remain near the vessel. decision but may not elect to conduct vessel away from the marine mammal to (4) NEFSC shall maintain visual pelagic longline survey activity when a different section of the sampling area monitoring effort during the entire animals remain within the 1-nmi zone. if the animal appears to be at risk of period of time that dredge gear is in the (5) NEFSC shall maintain visual interaction with the gear. If, after water (i.e., throughout gear deployment, monitoring effort during the entire moving on, marine mammals are still fishing, and retrieval). If marine period of gear deployment or retrieval. visible from the vessel, NEFSC may mammals are sighted before the gear is If marine mammals are sighted before decide to move again or to skip the fully removed from the water, NEFSC the gear is fully deployed or retrieved, station. NEFSC may use best shall take the most appropriate action to NEFSC shall take the most appropriate professional judgment in making this avoid marine mammal interaction. action to avoid marine mammal decision. NEFSC may use best professional judgment in making this decision. interaction. NEFSC may use best (4) NEFSC shall maintain visual (5) If dredging operations have been professional judgment in making this monitoring effort during the entire suspended because of the presence of decision. period of time that trawl gear is in the marine mammals, NEFSC may resume (6) If deployment or retrieval water (i.e., throughout gear deployment, operations when practicable only when operations have been suspended fishing, and retrieval). If marine the animals are believed to have because of the presence of marine mammals are sighted before the gear is departed the area. NEFSC may use best mammals, NEFSC may resume such fully removed from the water, NEFSC professional judgment in making this operations after there are no sightings of shall take the most appropriate action to determination. marine mammals for at least 15 minutes avoid marine mammal interaction. (6) NEFSC shall carefully empty the within the area or within the 1-nmi area NEFSC may use best professional dredge gear as quickly as possible upon for the Apex Predators Bottom Longline judgment in making this decision. retrieval to determine if marine Coastal Shark Survey. NEFSC may use (5) If trawling operations have been mammals are present in the gear. best professional judgment in making suspended because of the presence of (d) Bottom and pelagic longline this decision. marine mammals, NEFSC may resume survey protocols: (7) NEFSC shall implement standard trawl operations when practicable only (1) NEFSC shall deploy longline gear survey protocols, including maximum when the animals are believed to have as soon as is practicable upon arrival at soak durations and a prohibition on departed the area. NEFSC may use best the sampling station. chumming. professional judgment in making this (2) NEFSC shall initiate marine (e) Gillnet survey protocols: determination. mammal watches (visual observation) (1) The NEFSC and/or its cooperating (6) NEFSC shall implement standard no less than thirty minutes prior to both institutions, contracted vessels, or survey protocols to minimize potential deployment and retrieval of the longline commercially-hired captains shall for marine mammal interaction, gear. Marine mammal watches shall be deploy gillnet gear as soon as is including maximum tow durations at conducted by scanning the surrounding practicable upon arrival at the sampling target depth and maximum tow waters with the naked eye and station. distance, and shall carefully empty the binoculars (or monocular). During (2) The NEFSC and/or its cooperating trawl as quickly as possible upon nighttime operations, visual observation institutions, contracted vessels, or retrieval. Trawl nets must be cleaned shall be conducted using the naked eye commercially-hired captains shall prior to deployment. and available vessel lighting. initiate marine mammal watches (visual (c) Dredge survey protocols: (3) NEFSC shall implement the observation) prior to both deployment (1) NEFSC shall deploy dredge gear as ‘‘move-on rule.’’ If marine mammals are and retrieval of the gillnet gear. When soon as is practicable upon arrival at the sighted near the vessel 30 minutes the vessel is on station during the soak, sampling station. before setting the gear, the NEFSC may marine mammal watches shall be
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conducted during the soak by scanning cooperating institutions, contracted determined to be at risk of interacting the surrounding waters with the naked vessels, or commercially-hired captains with the gear, then the NEFSC and/or its eye and binoculars (or monocular). will actively monitor for potential cooperating institutions, contracted (3) The NEFSC and/or its cooperating bottlenose dolphin entanglements by vessels, or commercially-hired captains institutions, contracted vessels, or hand-checking the gillnet every 20 shall carefully retrieve the gear as commercially-hired captains shall minutes. In the unexpected case of a quickly as possible. The NEFSC and/or implement the ‘‘move-on rule.’’ If bottlenose dolphin entanglement, the its cooperating institutions, contracted marine mammals are sighted near the NEFSC and/or its cooperating vessels, or commercially-hired captains vessel before setting the gear, the NEFSC institutions, contracted vessels, or may use best professional judgment in and/or its cooperating institutions, commercially-hired captains shall making this decision. contracted vessels, or commercially- request and arrange for expedited (5) The NEFSC and/or its cooperating hired captains, may decide to move the genetic sampling for stock institutions, contracted vessels, or vessel away from the marine mammal to determination. The NEFSC and/or its commercially-hired captains shall a different section of the sampling area cooperating institutions, contracted ensure that surveys deploy gear if the animal appears to be at risk of vessels, or commercially-hired captains fulfilling all Pot/Trap universal interaction with the gear. If, after shall also photograph the dorsal fin and commercial gear configurations such as moving on, marine mammals are still submit the image to the NMFS weak link requirements and marking visible from the vessel, the NEFSC and/ Southeast Stranding Coordinator for requirements as specified by applicable or its cooperating institutions, identification/matching to bottlenose take reduction plans as required for contracted vessels, or commercially- dolphins in the Mid-Atlantic Bottlenose commercial pot/trap fisheries. hired captains may decide to move Dolphin Photo-identification Catalog. (6) The NEFSC shall ensure that its again or to skip the station. The NEFSC (f) Pot and trap survey protocols: cooperating institutions, contracted and/or its cooperating institutions, (1) The NEFSC and/or its cooperating vessels, or commercially-hired captains contracted vessels, or commercially- institutions, contracted vessels, or conducting pot and trap surveys adhere hired captains may use best professional commercially-hired captains shall to monitoring and mitigation judgment in making this decision but deploy pot gear as soon as is practicable requirements and shall include required may not elect to conduct the gillnet upon arrival at the sampling station. protocols in all survey instructions, (2) The NEFSC and/or its cooperating survey activity when animals remain contracts, and agreements. institutions, contracted vessels, or near the vessel. (g) Fyke net gear protocols: (4) If marine mammals are sighted commercially-hired captains shall (1) NEFSC shall conduct fyke net gear near the vessel during the soak and are initiate marine mammal watches (visual deployment as soon as is practicable determined to be at risk of interacting observation) no less than 30 minutes upon arrival at the sampling station. with the gear, then the NEFSC and/or its prior to both deployment and retrieval cooperating institutions, contracted of the pot and trap gear. Marine (2) NEFSC shall visually survey the vessels, or commercially-hired captains mammal watches shall be conducted by area prior to both deployment and shall carefully retrieve the gear as scanning the surrounding waters with retrieval of the fyke net gear. NEFSC quickly as possible. The NEFSC and/or the naked eye and binoculars (or shall conduct monitoring and retrieval its cooperating institutions, contracted monocular). During nighttime of the gear every 12- to 24-hour soak vessels, or commercially-hired captains operations, visual observation shall be period. may use best professional judgment in conducted using the naked eye and (3) If marine mammals are in close making this decision. available vessel lighting. proximity (approximately 328 feet [100 (5) The NEFSC and/or its cooperating (3) The NEFSC and/or its cooperating meters]) of the setting location, NEFSC institutions, contracted vessels, or institutions, contracted vessels, or shall determine if the set location commercially-hired captains shall commercially-hired captains shall should be moved. NEFSC may use best implement standard survey protocols, implement the move-on rule. If marine professional judgment in making this including continuously monitoring the mammals are sighted near the vessel decision. gillnet gear during soak time and before setting the gear, the NEFSC and/ (4) If marine mammals are observed to removing debris with each pass as the or its cooperating institutions, interact with the gear during the setting, net is reset into the water to minimize contracted vessels, or commercially- NEFSC shall lift and remove the gear bycatch. hired captains, as appropriate, may from the water. (6) The NEFSC and/or its cooperating decide to move the vessel away from the (5) NEFSC must install and use a institutions, contracted vessels, or marine mammal to a different section of marine mammal excluder device at all commercially-hired captains shall the sampling area if the animal appears times when the 2-meter fyke net is used. ensure that surveys deploy acoustic to be at risk of interaction with the gear. (h) Beach seine gear protocols: pingers on gillnets in areas where If, after moving on, marine mammals are (1) NEFSC shall conduct beach seine required for commercial fisheries. still visible from the vessel, the NEFSC, deployment as soon as is practicable NEFSC must ensure that the devices are and/or its cooperating institutions, upon arrival at the sampling station. operating properly before deploying the contracted vessels, or commercially- (2) NEFSC shall visually survey the net. hired captains may decide to move area prior to both deployment and (7) NEFSC shall ensure that again or to skip the station. The NEFSC retrieval of the seine net gear. cooperating institutions, contracted and/or its cooperating institutions, (3) If marine mammals are in close vessels, or commercially-hired captains contracted vessels, or commercially- proximity of the seining location, conducting gillnet surveys adhere to hired captains may use best professional NEFSC shall lift the net and remove it monitoring and mitigation requirements judgment in making this decision but from the water. NEFSC may use best and shall include required protocols in may not elect to conduct the pot and professional judgment in making this all survey instructions, contracts, and trap activity when animals remain near decision. agreements. the vessel. (i) Rotary screw trap gear protocols: (8) For the COASTSPAN gillnet (4) If marine mammals are sighted (1) NEFSC shall conduct rotary screw surveys, the NEFSC and/or its near the vessel during the soak and are trap deployment as soon as is
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practicable upon arrival at the sampling professional judgment, including use in ninety days following the end of the station. any incidents of marine mammal reporting period. (2) NEFSC shall visually survey the interaction and instructive examples (ii) These reports shall contain, at area prior to both setting and retrieval where use of best professional judgment minimum, the following: of the rotary screw trap gear. If marine was determined to be successful or (A) Annual line-kilometers surveyed mammals are observed in the sampling unsuccessful. during which the EK60, ME70, DSM300 area, NEFSC shall suspend or delay the (3) NEFSC shall coordinate with (or equivalent sources) were sampling. NEFSC may use best NMFS’ Southeast Fisheries Science predominant and associated pro-rated professional judgment in making this Center (SEFSC) regarding surveys estimates of actual take; decision. conducted in the southern portion of the (B) Summary information regarding (3) NEFSC shall tend to the trap on a Atlantic coast region, such that training use of the following: All trawl gear, all daily basis to monitor for marine and guidance related to handling longline gear, all gillnet gear, all dredge mammal interactions with the gear. procedures and data collection is gear, fyke net gear, beach seine net gear, (4) If the rotary screw trap captures a consistent. and rotary screw trap gear (including marine mammal, NEFSC shall carefully (d) Handling procedures and data number of sets, hook hours, tows, and release the animal as soon as possible. collection: tending frequency specific to each gear (1) NEFSC must develop and type); § 219.36 Requirements for monitoring and (C) Accounts of all incidents of reporting. implement standardized marine mammal handling, disentanglement, marine mammal interactions, including (a) Visual monitoring program: circumstances of the event and (1) Marine mammal visual monitoring and data collection procedures. These standard procedures will be subject to descriptions of any mitigation shall occur: prior to deployment of procedures implemented or not beam, mid-water, and bottom trawl, approval by NMFS Office of Protected Resources (OPR). implemented and why; bottom and pelagic longline, gillnet, (D) Summary information from the (2) When practicable, for any marine fyke net, beach seine, pot, trap, and pinniped haulout censuses in the and mammal interaction involving the rotary screw trap gear; throughout summary information related to any release of a live animal, NEFSC shall deployment of gear and active fishing of disturbance of pinnipeds, including collect necessary data to facilitate a all research gears; and throughout event-specific total counts of animals serious injury determination. retrieval of all research gear. present, counts of reactions according to (3) NEFSC shall provide its relevant (2) Marine mammal watches shall be a three-point scale of response severity personnel with standard guidance and conducted by watch-standers (those (1 = alert; 2 = movement; 3 = flight), and training regarding handling of marine navigating the vessel and/or other crew) distance of closest approach; at all times when the vessel is being mammals, including how to identify (E) A written evaluation of the operated. different species, bring/or not bring an effectiveness of NEFSC mitigation (3) NEFSC shall monitor any potential individual aboard a vessel, assess the strategies in reducing the number of disturbance of pinnipeds on ledges, level of consciousness, remove fishing marine mammal interactions with paying particular attention to the gear, return an individual to water, and survey gear, including best professional distance at which different species of log activities pertaining to the judgment and suggestions for changes to pinniped are disturbed. Disturbance interaction. the mitigation strategies, if any; shall be recorded according to a three- (4) NEFSC shall record such data on (F) Final outcome of serious injury point scale of response (i.e., 1 = alert; 2 standardized forms, which will be determinations for all incidents of = movement; 3 = flight) to disturbance. subject to approval by OPR. The data marine mammal interactions where the (b) The NEFSC shall continue to shall be collected at a sufficient level of animal(s) were released alive; and conduct a local census of pinniped detail (e.g., circumstances leading to the (G) A summary of all relevant training haulout areas prior to conducting any interaction, extent of injury, condition provided by the NEFSC and any fisheries research in the Penobscot River upon release) to facilitate serious injury coordination with the Southeast Fishery estuary to better understand the local determinations under the MMPA. Science Center, the Greater Atlantic abundance of animals. The NEFSC’s (e) Reporting: Regional Office, and the Southeast census reports will now include an (1) NEFSC shall report all incidents of Regional Office, NMFS. accounting of disturbance based on the marine mammal interaction to NMFS’ (f) Reporting of injured or dead three-point scale of response severity Protected Species Incidental Take marine mammals: metrics. database within 48 hours of occurrence. (1) In the unanticipated event that the (c) Training: (2) NEFSC shall provide written specified activity clearly causes the take (1) NEFSC must conduct annual reports to OPR upon request following of a large whale (i.e., entanglement or training for all chief scientists and other any marine mammal interaction (animal ship strike) or if the NEFSC and/or its personnel (including its cooperating captured or entangled in research gear). cooperating institutions observe a institutions, contracted vessels, or In the event of a marine mammal carcass entangled in gear or struck by commercially-hired captains) who may interaction, these reports shall include any vessel, the NEFSC and/or its be responsible for conducting dedicated details of survey effort, full descriptions cooperating institutions must marine mammal visual observations to of any observations of the animals, the immediately report the incident to 866– explain mitigation measures and context (vessel and conditions), 755–6622 in the Northeast region (VA– monitoring and reporting requirements, decisions made and rationale for ME) and 877–WHALE–HELP in the mitigation and monitoring protocols, decisions made in vessel and gear Southeast region (FL–NC). If personnel marine mammal identification, handling. are unable to call these numbers, completion of datasheets, and use of (3) Annual reporting: personnel must contact the United equipment. NEFSC may determine the (i) The period of reporting will be one States Coast Guard (USCG). For active agenda for these trainings. year beginning at the date of issuance of entanglements, NEFSC personnel and/or (2) NEFSC shall also dedicate a the LOA. NEFSC shall submit an annual its cooperating institutions are not portion of training to discussion of best summary report to OPR not later than allowed to remove any gear until they
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receive a temporary authorization from mitigation measures or modifications to § 219.38 Renewals and modifications of NMFS. the activities are appropriate. Letters of Authorization. (2) In the unanticipated event that the (4) In the event that NEFSC and/or its (a) An LOA issued under § 216.106 of activity defined in § 219.31(a) clearly cooperating institutions discover an this chapter and § 219.37 for the activity causes the take of a marine mammal in injured or dead marine mammal and identified in § 219.31(a) shall be a prohibited manner, NEFSC and/or its determines that the injury or death is renewed or modified upon request by cooperating institution personnel not associated with or related to the the applicant, provided that: engaged in the research activity shall activities defined in § 219.31(a) (e.g., (1) The proposed specified activity immediately cease such activity until previously wounded animal, carcass and mitigation, monitoring, and such time as an appropriate decision with moderate to advanced reporting measures, as well as the regarding activity continuation can be decomposition, scavenger damage), anticipated impacts, are the same as made by the NEFSC Director (or NEFSC shall report the incident to OPR, those described and analyzed for these designee). For large whales, the NEFSC the Greater Atlantic Regional Stranding regulations (excluding changes made and/or its cooperating institutions must Coordinator, and the Southeast Regional pursuant to the adaptive management first contact the hotline numbers or the Stranding Coordinator, NMFS within 24 provision in paragraph (c)(1) of this USCG as outlined in paragraph (f)(1) of hours of the discovery. For large whales, section), and (2) OPR determines that the this section. The NEFSC must also the NEFSC and/or its cooperating mitigation, monitoring, and reporting report the incident immediately to OPR, institutions must first contact the measures required by the previous LOA the Greater Atlantic Regional Stranding hotline numbers or the USCG as under these regulations were Coordinator, and the Southeast Regional outlined in paragraph (f)(1) of this implemented. Stranding Coordinator, NMFS. OPR will section. NEFSC shall provide (b) For an LOA modification or review the circumstances of the photographs or video footage or other renewal requests by the applicant that prohibited take and work with NEFSC documentation of the stranded animal include changes to the activity or the to determine what measures are sighting to OPR, the Greater Atlantic mitigation, monitoring, or reporting necessary to minimize the likelihood of Regional Stranding Coordinator, and the (excluding changes made pursuant to further prohibited take and ensure Southeast Regional Stranding the adaptive management provision in MMPA compliance. The report must Coordinator, NMFS. include the following information: in paragraph (c)(1) of this section) that (i) Time, date, and location (latitude/ § 219.37 Letters of Authorization. do not change the findings made for the regulations or result in no more than a longitude) of the incident; (a) To incidentally take marine (ii) Description of the incident; minor change in the total estimated (iii) Environmental conditions mammals pursuant to these regulations, number of takes (or distribution by (including wind speed and direction, NEFSC must apply for and obtain an species or years), OPR may publish a Beaufort sea state, cloud cover, and LOA. notice of proposed LOA in the Federal visibility); (b) An LOA, unless suspended or Register, including the associated (iv) Description of all marine mammal revoked, may be effective for a period of analysis of the change, and solicit observations in the 24 hours preceding time not to exceed the expiration date public comment before issuing the LOA. the incident; of these regulations. (c) An LOA issued under § 216.106 of (v) Species identification or (c) If an LOA expires prior to the this chapter and § 219.37 for the activity description of the animal(s) involved; expiration date of these regulations, identified in § 219.31(a) may be (vi) Status of all sound source use in NEFSC may apply for and obtain a modified by OPR under the following the 24 hours preceding the incident; renewal of the LOA. circumstances: (vii) Water depth; (1) Adaptive Management—OPR may (viii) Fate of the animal(s); and (d) In the event of projected changes to the activity or to mitigation and modify (including augment) the existing (ix) Photographs or video footage of mitigation, monitoring, or reporting the animal(s). monitoring measures required by an LOA, NEFSC must apply for and obtain measures (after consulting with NEFSC (3) In the event that NEFSC and/or its regarding the practicability of the cooperating institutions discover an a modification of the LOA as described in § 219.38. modifications) if doing so creates a injured or dead marine mammal and reasonable likelihood of more determines that the cause of the injury (e) The LOA shall set forth: effectively accomplishing the goals of or death is unknown and the death is (1) Permissible methods of incidental the mitigation and monitoring set forth relatively recent (e.g., in less than a taking; in the preamble for these regulations. moderate state of decomposition), (2) Means of effecting the least (i) Possible sources of data that could NEFSC shall immediately report the practicable adverse impact (i.e., contribute to the decision to modify the incident to OPR, the Greater Atlantic mitigation) on the species, its habitat, mitigation, monitoring, or reporting Regional Stranding Coordinator, and the and on the availability of the species for measures in an LOA: Southeast Regional Stranding subsistence uses; and (A) Results from NEFSC’s monitoring Coordinator, NMFS. For large whales, from the previous year(s). the NEFSC and/or its cooperating (3) Requirements for monitoring and reporting. (B) Results from other marine institutions must first contact the mammal and/or sound research or hotline numbers or the USCG as (f) Issuance of the LOA shall be based studies. outlined in paragraph (f)(1) of this on a determination that the level of (C) Any information that reveals section. The report must include the taking will be consistent with the marine mammals may have been taken same information identified in findings made for the total taking in a manner, extent or number not paragraph (f)(2) of this section. allowable under these regulations. authorized by these regulations or Activities may continue while OPR (g) Notice of issuance or denial of an subsequent LOAs. reviews the circumstances of the LOA shall be published in the Federal (ii) If, through adaptive management, incident. OPR will work with NEFSC to Register within thirty days of a the modifications to the mitigation, determine whether additional determination. monitoring, or reporting measures are
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substantial, OPR will publish a notice of species or stocks of marine mammals §§ 219.39—219.40 [Reserved] proposed LOA in the Federal Register specified in § 219.32(b), an LOA may be [FR Doc. 2016–18739 Filed 8–10–16; 8:45 am] and solicit public comment. modified without prior notice or BILLING CODE 3510–22–P (2) Emergencies—If OPR determines opportunity for public comment. Notice that an emergency exists that poses a would be published in the Federal significant risk to the well-being of the Register within thirty days of the action.
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Proposed Rules Federal Register Vol. 81, No. 155
Thursday, August 11, 2016
This section of the FEDERAL REGISTER Airport (formerly Sugar Land describes in more detail the scope of the contains notices to the public of the proposed Municipal/Hull Field) would be agency’s authority. This rulemaking is issuance of rules and regulations. The adjusted to coincide with the FAA’s promulgated under the authority purpose of these notices is to give interested aeronautical database. described in Subtitle VII, Part, A, persons an opportunity to participate in the Subpart I, Section 40103. Under that rule making prior to the adoption of the final DATES: Comments must be received on rules. or before September 26, 2016. section, the FAA is charged with ADDRESSES: Send comments on this prescribing regulations to assign the use proposal to the U.S. Department of of airspace necessary to ensure the DEPARTMENT OF TRANSPORTATION Transportation, Docket Operations, safety of aircraft and the efficient use of West Building Ground Floor, Room airspace. This regulation is within the Federal Aviation Administration W12–140, 1200 New Jersey Avenue SE., scope of that authority as it would Washington, DC, 20590; telephone (202) amend Class D airspace and Class E 14 CFR Part 71 366–9826, or 1–800–647–5527. You surface area airspace at Sugar Land [Docket No. FAA–2016–8503; Airspace must identify FAA Docket No. FAA– Regional Airport, Houston Sugar Land, Docket No. 16–ASW–11] 2016–8503; Airspace Docket No. 16– TX; amend Class E airspace extending ASW–11, at the beginning of your upward from 700 feet above the surface Proposed Amendment of Class D and comments. You may also submit at Kingsville Kleberg County Airport, E Airspace for the Following Texas comments through the Internet at http:// Alice, TX; Bay City Municipal Airport, Towns; Houston Sugar Land, TX; www.regulations.gov. You may review Bay City, TX; Brenham Municipal Alice, TX; Bay City, TX; Brenham, TX; the public docket containing the Airport, Brenham, TX; Burnet Burnet, TX; Falfurrias, TX; Graford, TX; proposal, any comments received, and Municipal Airport-Kate Craddock Field, and Hamilton, TX, and Proposed any final disposition in person in the Burnet, TX; Brooks County Airport, Revocation of Class E Airspace; Dockets Office between 9:00 a.m. and Falfurrias, TX; Possum Kingdom Austin Horseshoe Bay Resort Airport, 5:00 p.m., Monday through Friday, Airport, Graford, TX; and Hamilton TX except Federal holidays. Municipal Airport, Hamilton, TX; and FAA Order 7400.9Z, Airspace remove Class E at Horseshoe Bay Resort AGENCY: Federal Aviation Designations and Reporting Points, and Airport, Austin, TX. Administration (FAA), DOT. subsequent amendments can be viewed ACTION: Comments Invited Notice of proposed rulemaking online at http://www.faa.gov/air_traffic/ (NPRM). publications/. For further information, Interested parties are invited to SUMMARY: This action proposes to you can contact the Airspace Policy participate in this proposed rulemaking modify Class D and Class E surface area Group, Federal Aviation by submitting such written data, views, airspace at Sugar Land Regional Airport, Administration, 800 Independence or arguments, as they may desire. Houston Sugar Land, TX. The FAA also Avenue SW., Washington, DC, 20591; Comments that provide the factual basis proposes to modify Class E airspace telephone: 202–267–8783. The Order is supporting the views and suggestions extending upward from 700 feet above also available for inspection at the presented are particularly helpful in the surface at Kingsville Kleberg County National Archives and Records developing reasoned regulatory Airport, Alice, TX; Bay City Municipal Administration (NARA). For decisions on the proposal. Comments Airport, Bay City, TX; Brenham information on the availability of FAA are specifically invited on the overall Municipal Airport, Brenham, TX; Order 7400.9Z at NARA, call 202–741– regulatory, aeronautical, economic, Burnet Municipal Airport-Kate 6030, or go to http://www.archives.gov/ environmental, and energy-related Craddock Field, Burnet, TX; Brooks federal_register/code_of_federal- aspects of the proposal. County Airport, Falfurrias, TX; Possum regulations/ibr_locations.html. Communications should identify both Kingdom Airport, Graford, TX; and FAA Order 7400.9, Airspace docket numbers and be submitted in Hamilton Municipal Airport, Hamilton, Designations and Reporting Points, is triplicate to the address listed above. TX. Decommissioning of non- published yearly and effective on Commenters wishing the FAA to directional radio beacons (NDBs), September 15. acknowledge receipt of their comments cancellation of NDB approaches, and FOR FURTHER INFORMATION CONTACT: on this notice must submit with those implementation of area navigation Jeffrey Claypool, Federal Aviation comments a self-addressed, stamped (RNAV) procedures have made this Administration, Operations Support postcard on which the following action necessary for the safety and Group, Central Service Center, 10101 statement is made: ‘‘Comments to management of Instrument Flight Rules Hillwood Parkway, Fort Worth, TX, Docket No. FAA–2016–8503/Airspace (IFR) operations at these airports. This 76177; telephone (817) 222–5711. Docket No. 16–ASW–11.’’ The postcard action also proposes to remove Class E SUPPLEMENTARY INFORMATION: will be date/time stamped and returned airspace at Horseshoe Bay Resort to the commenter. Airport, Austin, TX, as controlled Authority for This Rulemaking Availability of NPRMs airspace is no longer needed. The FAA’s authority to issue rules Additionally, the geographic regarding aviation safety is found in An electronic copy of this document coordinates at Bay City Municipal Title 49 of the United States Code. may be downloaded through the Airport, Brenham Municipal Airport, Subtitle I, Section 106 describes the Internet at http://www.regulations.gov. and Brooks County Airport, as well as authority of the FAA Administrator. Recently published rulemaking the name of Sugar Land Regional Subtitle VII, Aviation Programs, documents can also be accessed through
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the FAA’s Web page at http:// from the 7.0-mile radius to 10.9 miles, List of Subjects in 14 CFR Part 71 www.regulations.gov. and to the southwest of the airport from Airspace, Incorporation by reference, You may review the public docket the 7.0-mile radius to 10.9 miles; Navigation (air). containing the proposal, any comments And within a 6.5-mile radius of received, and any final disposition in Hamilton Municipal Airport, Hamilton, The Proposed Amendment person in the Dockets Office (see the TX, with extensions to the north of the Accordingly, pursuant to the ADDRESSES section for the address and airport from the 6.5-mile radius to 9.4 authority delegated to me, the Federal phone number) between 9:00 a.m. and miles, and to the south of the airport Aviation Administration proposes to 5:00 p.m., Monday through Friday, from the 6.5-mile radius to 10.3 miles; amend 14 CFR part 71 as follows: except federal holidays. An informal The Class E airspace area extending docket may also be examined during upward from 700 feet above the surface PART 71—DESIGNATION OF CLASS A, normal business hours at the Federal within a 6.5-mile radius of Horseshoe B, C, D, AND E AIRSPACE AREAS; AIR Aviation Administration, Air Traffic Bay Resort Airport, Austin Horseshoe TRAFFIC SERVICE ROUTES; AND Organization, Central Service Center, Bay Resort Airport, TX, would be REPORTING POINTS Operations Support Group, 10101 removed as the SIAPs have been Hillwood Parkway, Fort Worth, TX, cancelled and controlled airspace is no ■ 1. The authority citation for 14 CFR 76177. longer needed. part 71 continues to read as follows: Airspace reconfiguration is necessary Authority: 49 U.S.C. 106(f), 106(g); 40103, Availability and Summary of due to the decommissioning of NDBs, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, Documents Proposed for Incorporation cancellation of NDB approaches, and 1959–1963 Comp., p. 389. by Reference implementation of RNAV procedures at § 71.1 [Amended] This document proposes to amend the above airports. Controlled airspace ■ FAA Order 7400.9Z, Airspace is necessary for the safety and 2. The incorporation by reference in Designations and Reporting Points, management of the standard instrument 14 CFR 71.1 of FAA Order 7400.9Z, dated August 6, 2015, and effective approach procedures for IFR operations Airspace Designations and Reporting September 15, 2015. FAA Order at the airports. Points, dated August 6, 2015, and 7400.9Z is publicly available as listed in Class D and E airspace designations effective September 15, 2015, is the ADDRESSES section of this document. are published in paragraph 5000, 6002, amended as follows: FAA Order 7400.9Z lists Class A, B, C, and 6005, respectively, of FAA Order Paragraph 5000 Class D Airspace. D, and E airspace areas, air traffic 7400.9Z, dated August 6, 2015, and * * * * * service routes, and reporting points. effective September 15, 2015, which is incorporated by reference in 14 CFR ASW TX D Houston Sugar Land, TX The Proposal 71.1. The Class E airspace designations [Amended] The FAA is proposing an amendment listed in this document will be Sugar Land, Sugar Land Regional Airport, TX to Title 14 Code of Federal Regulations published subsequently in the Order. (Lat. 29°37′20″ N., long. 95°39′24″ W.) (14 CFR) Part 71 by modifying: That airspace extending upward from the Regulatory Notices and Analyses Class D airspace and Class E surface surface to and including 2,600 feet MSL area airspace within a 5.8-mile radius of The FAA has determined that this within a 5.8-mile radius of Sugar Land Sugar Land Regional Airport, Houston regulation only involves an established Regional Airport. This Class D airspace area body of technical regulations for which is effective during the specific dates and Sugar Land, TX, and updating the name times established in advance by a Notice to of airport to coincide with the FAA’s frequent and routine amendments are Airmen. The effective date and time will aeronautical database; necessary to keep them operationally thereafter be continuously published in the Class E airspace extending upward current, is non-controversial and Airport/Facility Directory. from 700 feet above the surface within unlikely to result in adverse or negative * * * * * a 6.6-mile radius of Kingsville, Kleberg comments. It, therefore: (1) Is not a County Airport, Alice, TX, with an ‘‘significant regulatory action’’ under Paragraph 6002 Class E Airspace extension northwest of the airport from Executive Order 12866; (2) is not a Designated as Surface Areas. the 6.6-mile radius to 10.3 miles; ‘‘significant rule’’ under DOT * * * * * Within a 6.5-mile radius of Bay City Regulatory Policies and Procedures (44 ASW TX E2 Houston Sugar Land, TX Municipal Airport, Bay City, TX, and FR 11034; February 26, 1979); and (3) [Amended] updating the geographic coordinates of does not warrant preparation of a Sugar Land, Sugar Land Regional Airport, TX the airport to coincide with the FAAs regulatory evaluation as the anticipated (Lat. 29°37′20″ N., long. 95°39′24″ W.) aeronautical database; impact is so minimal. Since this is a Within a 5.8-mile radius of Sugar Land Within a 6.5-mile radius of Brenham routine matter that will only affect air Regional Airport. This Class E airspace is Municipal Airport, Brenham TX, and traffic procedures and air navigation, it effective during the specific dates and times updating the geographic coordinates of is certified that this rule, when established in advance by a Notice to the airport to coincide with the FAAs promulgated, would not have a Airmen. The effective date and time will aeronautical database; significant economic impact on a thereafter be continuously published in the Within a 6.6-mile radius of the Burnet substantial number of small entities Airport/Facility Directory. Municipal Airport-Kate Craddock Field, under the criteria of the Regulatory * * * * * Burnet, TX; Flexibility Act. Within a 6.6-mile radius of Brooks Paragraph 6005 Class E Airspace Areas Environmental Review Extending Upward From 700 Feet or More County Airport, Falfurrias, TX, and Above the Surface of the Earth. updating the geographic coordinates of This proposal will be subject to an * * * * * the airport to coincide with the FAAs environmental analysis in accordance aeronautical databases; with FAA Order 1050.1F, ASW TX E5 Alice, TX [Amended] Within a 7.0-mile radius of Possum ‘‘Environmental Impacts: Policies and Alice International Airport, TX Kingdom Airport, Graford, TX, with Procedures’’ prior to any FAA final (Lat. 27°44′27″ N., long. 98°01′37″ W.) extensions to the northeast of the airport regulatory action. Orange Grove NALF, TX
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(Lat. 27°53′49″ N., long. 98°02′37″ W.) radius of Possum Kingdom Airport and safety and management of Instrument Navy Orange Grove TACAN within 4 miles each side of the 031° bearing Flight Rules (IFR) operations at the ° ′ ″ ° ′ ″ (Lat. 27 53 43 N., long. 98 02 33 W.) from the airport extending from the 7.0-mile above airports. This action also Kingsville, Kleberg County Airport, TX radius to 10.9 miles northeast of the airport, proposes to remove Class E surface area (Lat. 27°33′03″ N., long. 98°01′51″ W.) and within 4 miles each side of the 210° bearing from the airport extending from the airspace at Wausau Municipal Airport That airspace extending upward from 700 (Wausau Downtown Airport), Wausau, feet above the surface within a 7.5-mile 7.0-mile radius to 10.9 miles southwest of the radius of Alice International Airport, and airport. WI, as a review has determined that the within 2 miles each side of the 135° bearing * * * * * airport no longer meets the from Alice International Airport extending requirements for this airspace. from the 7.5-mile radius to 9.8 miles ASW TX E5 Hamilton, TX [Amended] Additionally, the geographic southeast of the airport, and within a 7.2- Hamilton Municipal Airport, TX coordinates at Langlade County Airport, mile radius of the Orange Grove NALF, and (Lat. 31°39′57″ N., long. 98°08′55″ W.) John F. Kennedy Memorial Airport, within 1.6 miles each side of the 129° radial That airspace extending upward from 700 Cumberland Municipal Airport, Eagle of the Navy Orange Grove TACAN extending feet above the surface within a 6.5-mile River Union Airport, and Wausau from the 7.2-mile radius of the Orange Grove radius of Hamilton Municipal Airport, and Downtown Airport (formerly Wausau NALF to 11 miles southeast of the Orange ° within 2 miles each side of the 009 bearing Municipal Airport) would be adjusted to Grove NALF, and within 1.5 miles each side from the airport extending from the 6.5-mile of the 320° radial of the Navy Orange Grove radius to 9.4 miles north of the airport, and coincide with the FAAs aeronautical TACAN extending from the 7.2-mile radius within 2 miles each side of the 189° bearing database. of the Orange Grove NALF to 9.7 miles from the airport extending from the 6.5-mile DATES: Comments must be received on northwest of the Orange Grove NALF, and radius to 10.3 miles south of the airport. or before September 26, 2016. within a 6.6-mile radius of Kleberg County Issued in Fort Worth, Texas, on August 1, ADDRESSES: Send comments on this Airport, and within 4.0 miles each side of the 2016. 320° bearing from the Kleberg County Airport proposal to the U.S. Department of from the 6.6-mile radius to 10.3 miles Walter Tweedy, Transportation, Docket Operations, northwest of the airport, excluding that Acting Manager, Operations Support Group, West Building Ground Floor, Room airspace within the Corpus Christi, TX, Class ATO Central Service Center. W12–140, 1200 New Jersey Avenue SE., E airspace area. [FR Doc. 2016–18769 Filed 8–10–16; 8:45 am] Washington, DC 20590; telephone (202) * * * * * BILLING CODE 4910–13–P 366–9826, or 1–800–647–5527. You ASW TX E5 Austin, Horseshoe Bay Resort must identify FAA Docket No. FAA– Airport, TX [Removed] 2016–8557; Airspace Docket No. 16– DEPARTMENT OF TRANSPORTATION AGL–17, at the beginning of your * * * * * comments. You may also submit ASW TX E5 Bay City, TX [Amended] Federal Aviation Administration comments through the Internet at http:// Bay City Municipal Airport, TX www.regulations.gov. You may review (Lat. 28°58′24″ N., long. 95°51′48″ W.) 14 CFR Part 71 the public docket containing the That airspace extending upward from 700 [Docket No. FAA–2016–8557; Airspace proposal, any comments received, and feet above the surface within a 6.5-mile Docket No. 16–AGL–17] any final disposition in person in the radius of Bay City Municipal Airport. Dockets Office between 9:00 a.m. and * * * * * Proposed Amendment of Class E 5:00 p.m., Monday through Friday, Airspace for the Following Wisconsin except Federal holidays. ASW TX E5 Brenham, TX [Amended] Towns; Antigo, WI; Ashland, WI; Black FAA Order 7400.9Z, Airspace Brenham Municipal Airport, TX River Falls, WI; Cable Union, WI; Designations and Reporting Points, and ° ′ ″ ° ′ ″ (Lat. 30 13 11 N., long. 96 22 28 W.) Cumberland, WI; Eagle River, WI; subsequent amendments can be viewed That airspace extending upward from 700 Hayward, WI; and Wausau, WI, and online at http://www.faa.gov/air_traffic/ feet above the surface within a 6.5-mile Proposed Revocation of Class E publications/. For further information, radius of Brenham Municipal Airport. Airspace; Wausau, WI you can contact the Airspace Policy * * * * * AGENCY: Federal Aviation Group, Federal Aviation ASW TX E5 Burnet, TX [Amended] Administration (FAA), DOT. Administration, 800 Independence Avenue SW., Washington, DC, 20591; Burnet Municipal Airport-Kate Craddock ACTION: Notice of proposed rulemaking telephone: 202–267–8783. The Order is Field, TX (NPRM). (Lat. 30°44′20″ N., long. 98°14′19″ W.) also available for inspection at the That airspace extending upward from 700 SUMMARY: This action proposes to National Archives and Records feet above the surface within a 6.6-mile modify Class E airspace extending Administration (NARA). For radius of Burnet Municipal Airport-Kate upward from 700 feet above the surface information on the availability of FAA Craddock Field. at Langlade County Airport, Antigo, WI; Order 7400.9Z at NARA, call 202–741– * * * * * John F. Kennedy Memorial Airport, 6030, or go to http://www.archives.gov/ federal_register/code_of_federal- ASW TX E5 Falfurrias, TX [Amended] Ashland, WI; Black River Falls Area Airport, Black River Falls, WI; Cable regulations/ibr_locations.html. Brooks County Airport, TX FAA Order 7400.9, Airspace (Lat. 27°12′22″ N., long. 98°07′16″ W.) Union Airport, Cable Union, WI; Cumberland Municipal Airport, Designations and Reporting Points, is That airspace extending upward from 700 Cumberland, WI; Eagle River Union published yearly and effective on feet above the surface within a 6.6-mile September 15. radius of Brooks County Airport. Airport, Eagle River, WI; Sawyer County Airport, Hayward, WI; and Wausau FOR FURTHER INFORMATION CONTACT: * * * * * Downtown Airport, Wausau, WI. Jeffrey Claypool, Federal Aviation ASW TX E5 Graford, TX [Amended] Decommissioning of non-directional Administration, Operations Support Possum Kingdom Airport, TX radio beacon (NDB), cancellation of Group, Central Service Center, 10101 (Lat. 32°55′24″ N., long. 98°26′13″ W.) NDB approaches, and implementation Hillwood Parkway, Fort Worth, TX, That airspace extending upward from 700 of area navigation (RNAV) procedures 76177; telephone (817) 222–5711. feet above the surface within a 7.0-mile have made this action necessary for the SUPPLEMENTARY INFORMATION:
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Authority for This Rulemaking documents can also be accessed through with an extension southwest of the The FAA’s authority to issue rules the FAA’s Web page at http:// airport from the 6.5-mile radius to 9.2 regarding aviation safety is found in www.regulations.gov. miles, and updating the geographic You may review the public docket Title 49 of the United States Code. coordinates of the airport to coincide containing the proposal, any comments Subtitle I, Section 106 describes the with the FAA’s aeronautical database; received, and any final disposition in Within a 6.6-mile radius of Sawyer authority of the FAA Administrator. person in the Dockets Office (see the County Airport, Hayward, WI, with an Subtitle VII, Aviation Programs, ADDRESSES section for the address and extension northeast of the airport from describes in more detail the scope of the phone number) between 9:00 a.m. and the 6.6-mile radius to 8.5 miles; agency’s authority. This rulemaking is 5:00 p.m., Monday through Friday, And within a 6.8-mile radius of promulgated under the authority except federal holidays. An informal Wausau Downtown Airport, Wausau, described in Subtitle VII, Part, A, docket may also be examined during WI, and updating the name and Subpart I, Section 40103. Under that normal business hours at the Federal geographic coordinates of the airport to section, the FAA is charged with Aviation Administration, Air Traffic coincide with the FAA’s aeronautical prescribing regulations to assign the use Organization, Central Service Center, database. of airspace necessary to ensure the Operations Support Group, 10101 The Class E airspace designated as a safety of aircraft and the efficient use of Hillwood Parkway, Fort Worth, TX, surface area at Wausau Municipal airspace. This regulation is within the 76177. Airport, Wausau, WI, would be removed scope of that authority as it would as the airport no longer meets the amend Class E airspace extending Availability and Summary of requirements for this airspace. upward from 700 feet above the surface Documents Proposed for Incorporation Airspace reconfiguration is necessary at Langlade County Airport, Antigo, WI; by Reference due to the decommissioning of NDBs, John F. Kennedy Memorial Airport, This document proposes to amend cancellation of NDB approaches, and Ashland, WI; Black River Falls Area FAA Order 7400.9Z, Airspace implementation of RNAV procedures at Airport, Black River Falls, WI; Cable Designations and Reporting Points, the above airports. Controlled airspace Union Airport, Cable Union, WI; dated August 6, 2015, and effective is necessary for the safety and Cumberland Municipal Airport, September 15, 2015. FAA Order management of the standard instrument Cumberland, WI; Eagle River Union 7400.9Z is publicly available as listed in approach procedures for IFR operations Airport, Eagle River, WI; Sawyer County the ADDRESSES section of this document. at the airports. Airport, Hayward, WI; and Wausau FAA Order 7400.9Z lists Class A, B, C, Class E airspace designations are Downtown Airport, Wausau, WI; and D, and E airspace areas, air traffic published in paragraphs 6002 and 6005, remove Class E surface area airspace at service routes, and reporting points. respectively, of FAA Order 7400.9Z, Wausau Downtown Airport (formerly dated August 6, 2015, and effective Wausau Municipal Airport), Wausau, The Proposal September 15, 2015, which is WI. The FAA is proposing an amendment incorporated by reference in 14 CFR Comments Invited to Title 14 Code of Federal Regulations 71.1. The Class E airspace designations (14 CFR) Part 71 by modifying Class E listed in this document will be Interested parties are invited to airspace extending upward from 700 published subsequently in the Order. participate in this proposed rulemaking feet above the surface: by submitting such written data, views, Within a 6.5-mile radius of Langlade Regulatory Notices and Analyses or arguments, as they may desire. County Airport, Antigo, WI, and The FAA has determined that this Comments that provide the factual basis updating the geographic coordinates of regulation only involves an established supporting the views and suggestions the airport to coincide with the FAA’s body of technical regulations for which presented are particularly helpful in aeronautical database; frequent and routine amendments are developing reasoned regulatory Within a 7.0-mile radius of John F. necessary to keep them operationally decisions on the proposal. Comments Kennedy Memorial Airport, Ashland, current, is non-controversial and are specifically invited on the overall WI, with an extension southwest of the unlikely to result in adverse or negative regulatory, aeronautical, economic, airport from the 7.0-mile radius to 8.2 comments. It, therefore: (1) Is not a environmental, and energy-related miles, and updating the geographic ‘‘significant regulatory action’’ under aspects of the proposal. coordinates of the airport to coincide Executive Order 12866; (2) is not a Communications should identify both with the FAA’s aeronautical database; ‘‘significant rule’’ under DOT docket numbers and be submitted in Within a 7.1-mile radius of Black Regulatory Policies and Procedures (44 triplicate to the address listed above. River Falls Area Airport, Black River FR 11034; February 26, 1979); and (3) Commenters wishing the FAA to Falls, WI, with an extension southwest does not warrant preparation of a acknowledge receipt of their comments of the airport from the 7.1-mile radius regulatory evaluation as the anticipated on this notice must submit with those to 11.7 miles, with an extension impact is so minimal. Since this is a comments a self-addressed, stamped northeast of the airport from the 7.1- routine matter that will only affect air postcard on which the following mile radius to 11.4 miles; traffic procedures and air navigation, it statement is made: ‘‘Comments to Within a 6.9-mile radius of Cable is certified that this rule, when Docket No. FAA–2016–8557/Airspace Union Airport, Cable Union, WI; promulgated, would not have a Docket No. 16–AGL–17.’’ The postcard Within a 6.4-mile radius of significant economic impact on a will be date/time stamped and returned Cumberland Municipal Airport, substantial number of small entities to the commenter. Cumberland, WI, with extensions from under the criteria of the Regulatory the 6.4-mile radius to 10.2 miles west Availability of NPRMs Flexibility Act. and east; and updating the geographic An electronic copy of this document coordinates of the airport to coincide Environmental Review may be downloaded through the with the FAA’s aeronautical database; This proposal will be subject to an Internet at http://www.regulations.gov. Within a 6.5-mile radius of Eagle environmental analysis in accordance Recently published rulemaking River Union Airport, Eagle River, WI, with FAA Order 1050.1F,
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‘‘Environmental Impacts: Policies and within 2 miles each side of the 260° bearing DEPARTMENT OF HOUSING AND Procedures’’ prior to any FAA final from the airport extending from the 7.1-mile URBAN DEVELOPMENT regulatory action. radius to 11.7 miles west of the airport. 24 CFR Parts 30 and 206 List of Subjects in 14 CFR Part 71 * * * * * [Docket No. FR–5353–N–02] Airspace, Incorporation by reference, AGL WI E5 Cable Union, WI [Amended] Navigation (air). Cable Union Airport, WI RIN 2502–AI79 (Lat. 46°11′42″ N., long. 91°14′54″ W.) The Proposed Amendment Federal Housing Administration (FHA): That airspace extending upward from 700 Strengthening the Home Equity Accordingly, pursuant to the feet above the surface within a 6.9-mile Conversion Mortgage Program authority delegated to me, the Federal radius of Cable Union Airport. Aviation Administration proposes to * * * * * AGENCY: Office of the Assistant amend 14 CFR part 71 as follows: Secretary for Housing—Federal Housing AGL WI E5 Cumberland, WI [Amended] PART 71—DESIGNATION OF CLASS A, Commissioner, HUD. Cumberland Municipal Airport, WI B, C, D, AND E AIRSPACE AREAS; AIR ACTION: Supplemental notice of (Lat. 45°30′22″ N., long. 91°58′51″ W.) TRAFFIC SERVICE ROUTES; AND proposed rulemaking. REPORTING POINTS That airspace extending upward from 700 feet above the surface within a 6.4-mile SUMMARY: On May 19, 2016, HUD published in the Federal Register, a ■ 1. The authority citation for 14 CFR radius of Cumberland Municipal Airport, and ° proposed rule that would codify several part 71 continues to read as follows: within 2 miles each side of the 091 bearing from the airport extending from the 6.4-mile significant changes to FHA’s Home Authority: 49 U.S.C. 106(f), 106(g); 40103, radius to 10.2 miles east of the airport, and Equity Conversion Mortgage program 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, within 2 miles each side of the 270° bearing that were previously issued under the 1959–1963 Comp., p. 389. from the airport extending from the 6.4-mile authority granted to HUD in the § 71.1 [Amended] radius to 10.2 miles west of the airport. Housing and Economic Recovery Act of ■ 2. The incorporation by reference in * * * * * 2008 and the Reverse Mortgage 14 CFR 71.1 of FAA Order 7400.9Z, Stabilization Act of 2013, and to make AGL WI E5 Eagle River, WI [Amended] Airspace Designations and Reporting additional regulatory changes. The Points, dated August 6, 2015, and Eagle River Union Airport, WI Home Equity Conversion Mortgage effective September 15, 2015, is (Lat. 45°55′56″ N., long. 89°16′06″ W.) program is FHA’s reverse mortgage amended as follows: That airspace extending upward from 700 program that enables seniors who have feet above the surface within a 6.5-mile equity in their homes to withdraw a Paragraph 6002 Class E Airspace portion of the accumulated equity. The Designated as Surface Areas. radius of Eagle River Union Airport, and within 2 miles each side of the 225° bearing intent of the Home Equity Conversion * * * * * from the airport extending from the 6.5-mile Mortgage program is to ease the AGL WI E2 Wausau, WI [Removed] radius to 9.2 miles southwest of the airport. financial burden on elderly homeowners facing increased health, * * * * * Paragraph 6005 Class E Airspace Areas housing, and subsistence costs at a time Extending Upward From 700 Feet or More AGL WI E5 Hayward, WI [Amended] of reduced income. This document Above the Surface of the Earth. opens the public comment period solely * * * * * Sawyer County Airport, WI (Lat. 46°01′31″ N., long. 91°26′39″ W.) for the provision addressed in this AGL WI E5 Antigo, WI [Amended] That airspace extending upward from 700 document to address a suggested change Langlade County Airport, WI feet above the surface within a 6.6-mile offered during the public comment ° ′ ″ ° ′ ″ (Lat. 45 09 14 N., long. 89 06 38 W.) radius of Sawyer County Airport, and within period for the proposed rule regarding That airspace extending upward from 700 2 miles each side of the 025° bearing from the the lender’s option to file a claim when feet above the surface within a 6.5-mile airport extending from the 6.6-mile radius to the loan balance reaches 98 percent of radius of Langlade County Airport. 8.5 miles northeast of the airport. the maximum claim amount. DATES: AGL WI E5 Ashland, WI [Amended] * * * * * Comment Due Date: September 12, 2016. John F. Kennedy Memorial Airport, WI AGL WI E5 Wausau, WI [Amended] (Lat. 46°32′55″ N., long. 90°55′08″ W.) ADDRESSES: Interested persons are That airspace extending upward from 700 Wausau Downtown Airport, WI invited to submit comments regarding ° ′ ″ ° ′ ″ feet above the surface within a 7.0-mile (Lat. 44 55 35 N., long. 89 37 37 W.) this notice to the Regulations Division, radius of John F. Kennedy Memorial Airport, That airspace extending upward from 700 Office of General Counsel, Department and within 2.9 miles each side of the 201° feet above the surface within a 6.8-mile of Housing and Urban Development, bearing from the airport extending from the radius of Wausau Downtown Airport. 451 7th Street SW., Room 10276, 7.0-mile radius to 8.2 miles southwest of the Washington, DC 20410–0500. airport. Issued in Fort Worth, Texas, on July 29, Communications must refer to the above * * * * * 2016. docket number and title. There are two Walter Tweedy, AGL WI E5 Black River Falls, WI methods for submitting public [Amended] Acting Manager, Operations Support Group, comments. All submissions must refer ATO Central Service Center. to the above docket number and title. Black River Falls Area Airport (Lat. 44°15′03″ N., long. 90°51′19″ W.) [FR Doc. 2016–18773 Filed 8–10–16; 8:45 am] 1. Submission of Comments by Mail. Comments may be submitted by mail to That airspace extending upward from 700 BILLING CODE 4910–13–P feet above the surface within a 7.1-mile the Regulations Division, Office of radius of Black River Falls Area Airport, and General Counsel, Department of within 2 miles each side of the 081° bearing Housing and Urban Development, 451 from the airport extending from the 7.1-mile 7th Street SW., Room 10276, radius to 11.4 miles east of the airport, and Washington, DC 20410–0001.
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2. Electronic Submission of (HECM) program. The HECM program B. The Proposed Rule and the Public Comments. Interested persons may allows eligible borrowers, 62 years of Comment submit comments electronically through age or older, to convert the equity in The May 19, 2016, proposed rule the Federal eRulemaking Portal at their homes into liquid assets. The proposed to codify a number of changes www.regulations.gov. HUD strongly withdrawal of equity may take a variety that had been implemented through encourages commenters to submit of forms, as authorized by the National mortgagee letters under the authority of comments electronically. Electronic Housing Act (NHA) and selected by the the Housing and Economic Recovery submission of comments allows the borrower. The home, which serves as Act of 2008 (Pub. L. 110–289, approved commenter maximum time to prepare security for the FHA-insured mortgage, July 30, 2008) (HERA) and the Reverse and submit a comment, ensures timely must be, and must continue to be, the Mortgage Stabilization Act of 2013 (Pub. receipt by HUD, and enables HUD to borrower’s principal residence during L. 113–29, approved August 9, 2013) make them immediately available to the the life of the borrower. For adjustable (RMSA). public. Comments submitted interest rate HECMs, equity payments to The public comment period on the electronically through the the borrower may be in the form of proposed rule closed on July 18, 2016. www.regulations.gov Web site can be monthly disbursements for life or a All public comments submitted to date viewed by other commenters and fixed term of years, disbursements from can be found at https:// interested members of the public. a line of credit advance or a www.regulations.gov/ Commenters should follow the combination of monthly disbursements document?D=HUD-2016-0052-0001, and instructions provided on that site to and a line of credit. For fixed interest each public comment is assigned a submit comments electronically. rate HECMs, equity payments to the number that begins with HUD–2016– Note: To receive consideration as public borrower must be in the form of a single 0052. On June 23, 2016, a public comments, comments must be submitted lump sum disbursement at closing. commenter (HUD–2016–0052–0010) through one of the two methods specified The maximum amount of equity in brought to HUD’s attention a suggested above. Again, all submissions must refer to the home that is available to a borrower the docket number and title of the document. change to the HECM program’s policy No Facsimile Comments. Facsimile (FAX) under a HECM loan is the ‘‘principal that grants the mortgagee the option to comments are not acceptable. limit’’ that is calculated for that loan. assign a HECM loan to FHA if the The borrower retains ownership of the outstanding loan balance is equal to or Public Inspection of Public property and may sell the home at any Comments. All properly submitted greater than 98 percent of the maximum time keeping any residual sale proceeds claim amount. The commenter stated comments and communications in excess of the outstanding loan submitted to HUD will be available for that, in some cases, a mortgagee may balance. Until the mortgage is repaid, decline to file a claim in this scenario public inspection and copying between and regardless of whether or not 8 a.m. and 5 p.m. weekdays at the above if the property value has risen rapidly additional disbursements under the address. Due to security measures at the and the loan has an above-market rate. mortgage are permissible, interest on the HUD Headquarters building, an advance The commentator concluded that mortgage, mortgage insurance appointment to review the public lenders in this way have a ‘‘put option’’ premiums, and servicing charges, where comments must be scheduled by calling and ‘‘can choose to keep the best loans applicable, continue to accrue. the Regulations Division at 202–708– and make claims for the worst ones’’. In 3055 (this is not a toll-free number). The subject of this document regards order to address this issue, the Individuals with speech or hearing the mortgagee’s election of the commenter suggested that HUD require impairments may access this number assignment option as provided in that an assignment claim be made when via TTY by calling the toll-free Federal § 206.107(a). This section gives the the loans reach 98 percent of the Relay Service at 800–877–8339. Copies mortgagee an option, before the maximum claim amount. HUD seeks of all comments submitted are available mortgage is submitted for insurance public comment on the feasibility of this for inspection and downloading at endorsement, to select either: (1) The proposal as HUD is considering whether www.regulations.gov. assignment option, which allows the to adopt it. mortgagee to assign the HECM to the FOR FURTHER INFORMATION, CONTACT: Secretary if the mortgage balance is II. Proposed Approach To Require Karin Hill, Senior Policy Advisor, Office equal to or greater than 98 percent of the Claims Be Made at 98 Percent of of Single Family Housing, Department maximum claim amount; or (2) the Maximum Claim Amount of Housing and Urban Development, shared premium option, which allows Through this document, HUD solicits 451 7th Street SW., Room 9282, the mortgagee to retain a portion of the public comment solely on the issue of Washington, DC 20410; telephone monthly mortgage insurance premiums requiring mortgagees to file a claim number 202–402–3084 (this is not a toll- (MIP) but does not allow the mortgagee when the HECM loan reaches 98 percent free number). Individuals with speech to assign the mortgage unless the of the maximum claim amount. If HUD or hearing impairments may access this mortgagee fails to make payments and were to implement this proposal, HUD number through TTY by calling the toll- the Secretary demands assignment. would amend § 206.107(a) to require the free Federal Relay Service at 800–877– Under the assignment option, the mortgagee to assign the mortgage to the 8339. mortgagee may only assign the mortgage Commissioner if the mortgage balance is SUPPLEMENTARY INFORMATION: to the Secretary if the following are also equal to or greater than 98 percent of the I. Background true: (1) The mortgagee is current in maximum claim amount, or the making the required payments to the mortgagor has requested a payment A. The HECM Program mortgagor; (2) the mortgagee is current which exceeds the difference between On May 19, 2016, at 81 FR 31769, in making the required MIP payments to the maximum claim amount and the HUD published a document that the Secretary; (3) the mortgage is not mortgage balance. proposed to amend its regulations, at 24 due and payable; and (4) the mortgage By proposing the change to the CFR parts 30 and 206, that govern is a first lien of record and title to the assignment option suggested by the HUD’s reverse mortgage program, called property securing the mortgage is good public commenter, HUD would not alter the Home Equity Conversion Mortgage and marketable. the other proposed changes to
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§ 206.107(a). The criteria for assigning a DATES: Written comments must be final rule, and it will not take effect. We HECM loan to the Commissioner in received by September 12, 2016. would address all public comments in § 206.107(a) would remain, thereby still ADDRESSES: Submit your comments, any subsequent final rule based on this precluding the mortgagee from assigning identified by Docket ID No. EPA–HQ– proposed rule. the HECM loan if the loan or the OAR–2016–0408, to the Federal We do not intend to institute a second mortgagee’s servicing of the loan does eRulemaking Portal: http:// comment period on this action. Any not meet the criteria. Therefore, the www.regulations.gov. Follow the online parties interested in commenting must proposal would require the mortgagee to instructions for submitting comments. do so at this time. For further assign the mortgage to the Once submitted, comments cannot be information, please see the information Commissioner at the given threshold edited or withdrawn. The EPA may provided in the ADDRESSES section of unless the loan or the mortgagee’s publish any comment received to its this document. servicing of the loan does not meet the public docket. Do not submit II. Does this action apply to me? assignment criteria. electronically any information you HUD is soliciting public comment consider to be Confidential Business This action applies to you if you are solely on this proposal for a period of Information (CBI) or other information calculating the annual PM2.5 design 30 days. whose disclosure is restricted by statute. value for a site which does not have four Dated: August 9, 2016. Multimedia submissions (audio, video, complete quarters of data for a specific Genger Charles, etc.) must be accompanied by a written year and passes the minimum quarterly General Deputy Assistant Secretary for comment. The written comment is value substitution test. Housing. considered the official comment and III. Environmental Justice [FR Doc. 2016–19255 Filed 8–10–16; 8:45 am] should include discussion of all points The EPA has determined that this BILLING CODE 4210–67–P you wish to make. The EPA will generally not consider comments or proposed rule will not have comment contents located outside of the disproportionately high and adverse primary submission (e.g., on the Web, human health or environmental effects ENVIRONMENTAL PROTECTION on minority or low-income populations AGENCY Cloud, or other file sharing system). For additional submission methods, the full because it does not affect the level of 40 CFR Part 50 EPA public comment policy, protection provided to human health or information about CBI or multimedia the environment. This rule does not [EPA–HQ–OAR–2016–0408; FRL–9950–46– submissions, and general guidance on relax the calculation of the annual PM2.5 OAR] making effective comments, please visit NAAQS design values and, therefore, RIN 2060–AS89 http://www2.epa.gov/dockets/ will not cause decreases in the design commenting-epa-dockets. values used to designate and classify Technical Correction to the National FOR FURTHER INFORMATION CONTACT: Mr. nonattainment areas and assess progress Ambient Air Quality Standards for Brett Gantt, U.S. EPA, Office of Air towards meeting the NAAQS. Particulate Matter Quality Planning and Standards, Air IV. Statutory and Executive Order AGENCY: Environmental Protection Quality Assessment Division, Air Reviews Agency (EPA). Quality Analysis Group (Mail Code: For a complete discussion of the ACTION: Proposed rule. C304–04), Research Triangle Park, NC 27711; telephone number: (919) 541– administrative requirements applicable SUMMARY: The Environmental Protection 5274; fax number: (919) 541–3613; to this action, see the direct final rule in Agency (EPA) is proposing revisions to email address: [email protected]. the ‘‘Rules and Regulations’’ section of this Federal Register. correct an equation in an appendix in SUPPLEMENTARY INFORMATION: the National Ambient Air Quality List of Subjects in 40 CFR Part 50 Standards (NAAQS) for Particle I. Why is the EPA issuing this proposed Pollution. In the ‘‘Rules and rule? Air pollution control, Carbon Regulations’’ section of the Federal This document proposes a revision in monoxide, Lead, Nitrogen dioxide, Register, we are approving the appendix N to correct a scrivener’s error Ozone, Particulate matter, Sulfur oxides. correction as a direct final rule without in an intermediate equation in the Dated: August 3, 2016. a prior proposed rule. If we receive no calculation of the annual PM2.5 design Gina McCarthy, adverse comment, we will not take value to properly account for cases Administrator. further action on this proposed rule. where a site does not have four For the reasons stated in the Equation 2 describes an intermediate complete quarters of data in a specific preamble, the Environmental Protection step in the calculation of the design year and passes the minimum quarterly Agency proposes to amend title 40, value for the annual PM2.5 (particles value substitution test. We have chapter I of the Code of Federal with an aerodynamic diameter less than published a direct final rule approving Regulations as follows: or equal to a nominal 2.5 micrometers) the revisions to appendix N in the NAAQS. This proposed action would ‘‘Rules and Regulations’’ section of this PART 50—NATIONAL PRIMARY AND correct a scrivener’s error in one of the Federal Register because we view this SECONDARY AMBIENT AIR QUALITY equations used to calculate an annual as a non-controversial action and STANDARDS mean PM2.5 concentration, to properly anticipate no adverse comment. We account for cases where a site does not have explained our reasons for this ■ 1. The authority citation for Part 50 have four complete quarters of data and action in the preamble of the direct final continues to read as follows: passes one of two substitution tests. rule. This change accurately reflects the If we receive no adverse comment, we Authority: 42 U.S.C. 7401 et seq. intended calculation of the annual mean will not take further action on this ■ 2. In appendix N to part 50, in section PM2.5 design value and is consistent proposed rule. If we receive adverse 4.4, Equation 2 is revised to read as with the text elsewhere in the appendix. comment, we will withdraw the direct follows:
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Appendix N to Part 50—Interpretation submitted provisions as inconsistent I. Background of the National Ambient Air Quality with federal laws and regulations for the A. CAA and SIPs Standards for PM2.5 permitting of PM2.5. The EPA is Section 110 of the CAA requires states * * * * * proposing this disapproval under section 110 and part C of the Clean Air to develop and submit to the EPA a SIP 4.4 Equations for the Annual PM2.5 Act (CAA). to ensure that state air quality meets NAAQS National Ambient Air Quality Standards DATES: Written comments must be (NAAQS). These ambient standards * * * * * received on or before September 12, currently address six criteria pollutants: (b) * * * 2016. Carbon monoxide, nitrogen dioxide, ozone, lead, particulate matter, and ADDRESSES: Submit your comments, sulfur dioxide. Each federally-approved identified by Docket No. EPA–R06– SIP protects air quality primarily by OAR–2012–0263, at http:// addressing air pollution at its point of www.regulations.gov or via email to origin through air pollution regulations [email protected]. Follow the online and control strategies. The EPA instructions for submitting comments. approved SIP regulations and control Once submitted, comments cannot be strategies are federally enforceable. edited or removed from Regulations.gov. B. Prior Federal Action The EPA may publish any comment Where: received to its public docket. Do not Under Section 165(a) of the CAA, a ¯ Xy = the annual mean concentration for year submit electronically any information major source may not commence y (y = 1, 2, or 3); you consider to be Confidential construction unless the source has been nQ,y = the number of complete quarters Q in issued a permit and has satisfied certain year y; and Business Information (CBI) or other ¯ information whose disclosure is requirements. Among those Xq,y = the mean for quarter q of year y (result requirements, the permit applicant must of equation 1). restricted by statute. Multimedia demonstrate that emissions from submissions (audio, video, etc.) must be * * * * * construction or operation of the facility [FR Doc. 2016–19033 Filed 8–10–16; 8:45 am] accompanied by a written comment. will not cause, or contribute to, air BILLING CODE 6560–50–P The written comment is considered the pollution in excess of any increment, official comment and should include NAAQS, or any other applicable discussion of all points you wish to emission standard of performance. This ENVIRONMENTAL PROTECTION make. The EPA will generally not statutory requirement has been AGENCY consider comments or comment incorporated into federal regulations at contents located outside of the primary 40 CFR Part 52 40 CFR 51.166(k)(1). Moreover, to submission (i.e. on the web, cloud, or support this analysis, PSD permit [EPA–R06–OAR–2012–0263; FRL–9950–35– other file sharing system). For applications must contain air quality Region 6] additional submission methods, please monitoring data representing air quality contact Ms. Adina Wiley, (214) 665– Approval and Promulgation of in the area affected by the proposed 2115, [email protected]. For the full Implementation Plans; Oklahoma; source for the 1-year period preceding EPA public comment policy, Disapproval of Prevention of receipt of the application. This statutory information about CBI or multimedia Significant Deterioration for Particulate requirement has been incorporated into Matter Less Than 2.5 Micrometers— submissions, and general guidance on federal regulations at 40 CFR Significant Impact Levels and making effective comments, please visit 51.166(m)(ii)–(iv). In 2010, the EPA promulgated Significant Monitoring Concentration http://www2.epa.gov/dockets/ commenting-epa-dockets. regulations for SIPs concerning PSD permitting for PM which included AGENCY: Environmental Protection Docket: The index to the docket for 2.5 two voluntary screening tools: SILs and Agency (EPA). this action is available electronically at SMCs. 75 FR 64864 (Oct. 20, 2010). The ACTION: Proposed rule. www.regulations.gov and in hard copy SILs are screening tools that states with SUMMARY: The Environmental Protection at the EPA Region 6, 1445 Ross Avenue, PSD SIPs apply in the issuance of a PSD Agency (EPA) is proposing to Suite 700, Dallas, Texas. While all permit to demonstrate that the proposed disapprove severable portions of the documents in the docket are listed in source’s allowable emissions will not February 6, 2012, Oklahoma State the index, some information may be cause or contribute to a violation of the Implementation Plan (SIP) submittal publicly available only at the hard copy NAAQS or increment. The SMC has that establish certain de minimis location (e.g., copyrighted material), and been used to exempt sources from the thresholds for particulate matter less some may not be publicly available at requirement in the CAA to collect than 2.5 micrometers in diameter either location (e.g., CBI). preconstruction monitoring data for up (PM2.5) in the Prevention of Significant FOR FURTHER INFORMATION CONTACT: to 1 year before submitting a permit Deterioration (PSD) permitting Adina Wiley, (214) 665–2115, application in order to help determine requirements. Specifically, we are [email protected]. To inspect the existing ambient air quality. 78 FR proposing to disapprove provisions that hard copy materials, please schedule an 73699 (Dec. 9, 2013). adopt and implement the PM2.5 appointment with Ms. Adina Wiley or Sierra Club filed a petition for review significant impact levels (SILs) and Mr. Bill Deese at 214–665–7253. of the PSD regulations containing the significant monitoring concentration PM2.5 SILs and SMC with the United (SMC); both of which were vacated by SUPPLEMENTARY INFORMATION: States Court of Appeals for the District a federal court and subsequently Throughout this document wherever of Columbia Circuit (the Court). On removed from federal PSD regulations. ‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean January 22, 2013, the Court issued an We are proposing to disapprove the the EPA. opinion granting a request from the EPA
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to vacate and remand to the EPA to the Oklahoma SIP that are severable this concern, the Oklahoma Department portions of the October 20, 2010, PSD from the voluntary PSD exemptions. of Environmental Quality submitted a regulations establishing the PM2.5 SIL Our Technical Support Document letter on February 25, 2016, that and further vacating the portions of the (TSD), available in the rulemaking demonstrated the State retains authority PSD regulations establishing a PM2.5 docket, identifies the separate EPA to require pre- and post-construction SMC. See, Sierra Club v. EPA, 706 F.3d actions addressing the remainder of the PSD monitoring for PM2.5 under the 428 (D.C. Cir. 2013). February 6, 2012 submittal. Oklahoma PSD SIP in the event that the In response to the Court’s decision, EPA disapproves OAC 252:100–8– the EPA amended its regulations to II. The EPA’s Evaluation 33(c)(1). Specifically, the SIP, under remove the affected PM2.5 SIL Our analysis, available in our TSD, OAC 252:100–8–35.1(b)(3),2 grants the regulations from the federal regulations finds that the State of Oklahoma ODEQ Director the authority to request and to replace the existing PM2.5 SMC adopted and submitted on February 6, information regarding the air quality value with a ‘‘zero’’ threshold. 78 FR 2012, revisions to the Oklahoma SIP impact of the source or modification. 73698 (Dec. 9, 2013). In that rulemaking, that were substantively consistent with The ODEQ interprets this SIP provision the EPA removed the regulatory text the voluntary exemptions from PSD to grant the Director the authority to related to the affected PM2.5 SILs at monitoring at 40 CFR 51.166(i)(5)(i) and request monitoring data for PM2.5 as sections 51.166(k)(2) and 52.21(k)(2). the requirements for a source impact required under 40 CFR 51.166(m). Although the Court vacated the PM2.5 analysis at 40 CFR 51.166(k)(2) Further, as noted in our December 9, SMC provisions in 40 CFR promulgated on October 20, 2010. 2013, final rule, any State regulations or 51.166(i)(5)(i)(c) and 52.21(i)(5)(i)(c), the Subsequent to the submittal of these approved SIP provisions adopting the EPA did not remove the affected provisions, the Court vacated and PM2.5 SIL and SMC are unlawful and regulatory text, but instead revised the remanded these provisions to the EPA. may not be applied even prior to their concentration for the PM2.5 SMC listed On December 9, 2013, we promulgated removal from the applicable State in sections 51.166(i)(5)(i)(c) and revisions to the PSD SIP rules that regulations or SIP. See 78 FR 73698, 52.21(i)(5)(i)(c) to zero micrograms per removed the vacated PM2.5 SILs 73700. Because reliance on the PM2.5 cubic meter (0 mg/m3). Because 40 CFR provision and replaced the existing SIL and SMC has been deemed 51.166(i)(5)(iii) and 40 CFR PM2.5 SMC value with a ‘‘zero’’ unlawful, and because the State has 52.21(i)(5)(iii) establish an exemption threshold level at 40 CFR 51.166. provided a letter demonstrating from air monitoring requirements for Because the PM2.5 SILs and SMC are no underlying authority in the Oklahoma any pollutant ‘‘not listed in paragraph longer valid exemptions from the SIP at OAC 252:100–8–35.1(b)(3) to (i)(5)(i),’’ the EPA explained that it requirements of a PSD SIP, we propose require pre- and post-construction would not be appropriate to remove the to disapprove these revisions submitted monitoring for PM2.5, we have reference to PM2.5 in paragraph (i)(5)(i). to be included in the Oklahoma PSD SIP determined it is appropriate to Were the EPA to completely remove as they are inconsistent with the federal disapprove the submitted PM2.5 SMC PM2.5 from the list of pollutants in statutory and regulatory permitting provisions at OAC 252:100–8–33(c)(1). sections 51.166(i)(5)(i)(c) and requirements for PM2.5. The EPA has an obligation under 52.21(i)(5)(i)(c) of the PSD regulations, Disapproval of the submitted PM2.5 section 110 of the CAA to act on PM2.5 would no longer be a listed SILs at OAC 252:100–8–35(a)(2) ensures submitted SIP revisions unless these pollutant and the paragraph (iii) that the provisions at OAC 252:100–8– revisions are withdrawn by the State. provision could be interpreted as giving 35(a)(1) 1 in the existing SIP continue to Therefore, the EPA has a duty to act on reviewing authorities the discretion to apply to PM2.5. Namely, that the owner the submitted Oklahoma provisions exempt permit applicants from the or operator of the proposed source or pertaining to the PM2.5 SILs and SMC, requirement to conduct monitoring for modification shall demonstrate that, as because these provisions were PM2.5, in contravention of the Court’s of the source’s start-up date, allowable submitted for EPA’s review on February decision and the CAA. Instead, the EPA emissions increases from that source or 6, 2012, and the state has not withdrawn revised the concentration listed in modification, in conjunction with all the portion of the SIP submission sections 51.166(i)(5)(i)(c) and other applicable emissions increases or containing these provisions. Our 52.21(i)(5)(i)(c) to ‘‘0’’ micrograms per reductions (including secondary 3 proposed action today will disapprove cubic meter (mg/m ). This means that emissions) would not cause or this portion of the February 6, 2012 SIP there is no air quality impact level contribute to any increase in ambient submission because these provisions are below which a reviewing authority has concentrations that would exceed any inconsistent with the federal statutory the discretion to exempt a source from NAAQS in any air quality control and regulatory SIP permitting the PM2.5 monitoring requirements at 40 region; or the remaining available PSD requirements for PM2.5. CFR 52.21(m). increment for the specified air III. Proposed Action C. Oklahoma’s Submittal contaminants in any area, as determined by the Director of the Oklahoma We are proposing to disapprove On February 6, 2012, Oklahoma Department of Environmental Quality. severable portions of the February 6, submitted revisions to its PSD SIP at Disapproval of the submitted PM 2012, Oklahoma SIP submittal OAC 252:100–8–33(c)(1)(C) that adopted 2.5 SMC at OAC 252:100–8–33(c)(1) means establishing the voluntary PM SILs provisions substantively identical to the 2.5 that PM will not be a listed pollutant provision and SMC. The EPA has made EPA PSD SIP’s requirement for PM 2.5 2.5 in the state’s requirement for ambient the preliminary determination that these PSD SMC. 40 CFR 51.166(i)(5)(i). The monitoring data, and would appear to submitted revisions to the Oklahoma February 6, 2012, submittal also allow PSD permit applicants to avoid SIP are disapprovable because they included revisions to OAC 252:100–8– submitting PM monitoring data as part establish permitting SIP requirements 35(a)(2) that adopted provisions 2.5 of their permit application. To address that are inconsistent with the federal substantively identical to the EPA PSD SIP’s requirements for PM2.5 PSD SILs. 1 The EPA proposed approval of OAC 252:100–8– 2 The EPA proposed approval of OAC 252:100–8– 40 CFR 51.166(k)(2). The February 6, 35(a)(1) on June 30, 2016, as consistent with federal 35.1(b)(3) on June 30, 2016, as consistent with 2012, submittal included other revisions PSD requirements. See 81 FR 42587. federal PSD requirements. See 81 FR 42587.
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statutory and regulatory permitting substantial number of small entities H. Executive Order 13211: Actions requirements for PM2.5. Therefore, under the RFA. This action will not Concerning Regulations That under section 110 and part C of the impose any requirements on small Significantly Affect Energy Supply, CAA, and for the reasons presented entities. This action proposes to Distribution or Use above, the EPA is proposing to disapprove submitted revisions that are This action is not subject to Executive disapprove the following revisions: no longer consistent with federal laws Order 13211, because it is not a • Substantive revisions to the and regulations for the regulation and significant regulatory action under Oklahoma SIP at OAC 252:100–8– permitting of PM2.5, and therefore will Executive Order 12866. 33(c)(1)(C) establishing the PM2.5 SMC have no impact on small entities. as submitted on February 6, 2012; and I. National Technology Transfer and • Substantive revisions to the D. Unfunded Mandates Reform Act Advancement Act (NTTAA) Oklahoma PSD program in OAC (UMRA) This rulemaking does not involve 252:100–8–35(a)(2) establishing the This action does not contain any technical standards. PM2.5 PSD SILs provision as submitted unfunded mandate as described in on February 6, 2012. UMRA, 2 U.S.C. 1531–1538, and does J. Executive Order 12898: Federal The EPA is proposing to disapprove not significantly or uniquely affect small Actions To Address Environmental the revisions listed because the governments. The action imposes no Justice in Minority Populations and submitted provisions are inconsistent enforceable duty on any state, local or Low-Income Populations with the federal statutory and regulatory tribal governments or the private sector. The EPA believes the human health or permitting requirements for PM . Upon 2.5 This action proposes to disapprove environmental risk addressed by this finalization of this disapproval owners submitted revisions that are no longer action will not have potential or operators of a proposed source or consistent with federal laws and disproportionately high and adverse modification will continue to satisfy the regulations for the regulation and human health or environmental effects source impact analysis provisions for permitting of PM , and therefore will PM as required under the Oklahoma 2.5 on minority, low-income or indigenous 2.5 have no impact on small governments. SIP at OAC 252:100–8–35(a)(1). populations. This action is not subject Additionally, the State of Oklahoma E. Executive Order 13132: Federalism to Executive Order 12898 because it would continue to have the necessary disapproves state permitting provisions This action does not have federalism that are inconsistent with federal laws authority to require monitoring of PM2.5 under the Oklahoma SIP at OAC implications. It will not have substantial and regulations for the regulation and 252:100–8–35.1(b)(3) consistent with direct effects on the states, on the permitting of PM2.5. relationship between the national the provisions of 40 CFR 52.21(m). List of Subjects in 40 CFR Part 52 Finalization of this proposed government and the states, or on the Environmental protection, Air disapproval will not require the EPA to distribution of power and pollution control, Incorporation by promulgate a Federal Implementation responsibilities among the various reference, Intergovernmental relations, Plan, because the Oklahoma PSD levels of government. Particulate matter, Reporting and program will continue to satisfy the F. Executive Order 13175: Consultation recordkeeping requirements. Federal PSD SIP requirements for PM2.5 and Coordination With Indian Tribal monitoring and source impact analysis. Governments Authority: 42 U.S.C. 7401 et seq. We are proposing this disapproval Dated: July 29, 2016. under section 110 and part C of the Act; This action does not have tribal implications as specified in Executive Ron Curry, as such, the EPA will not impose Regional Administrator, Region 6. sanctions as a result of a final Order 13175. This action proposes to disapproval. disapprove provisions of state law that [FR Doc. 2016–18895 Filed 8–10–16; 8:45 am] are no longer consistent with federal BILLING CODE 6560–50–P IV. Statutory and Executive Order law for the regulation and permitting of Reviews PM2.5; there are no requirements or ENVIRONMENTAL PROTECTION A. Executive Order 12866: Regulatory responsibilities added or removed from AGENCY Planning and Review and Executive Indian Tribal Governments. Thus, Order 13563: Improving Regulation and Executive Order 13175 does not apply 40 CFR Part 271 Regulatory Review to this action. [EPA–R06–RCRA–2016–0176; FRL–9950– This action is not a significant G. Executive Order 13045: Protection of 12–Region 6] regulatory action and was therefore not Children From Environmental Health submitted to the Office of Management Risks and Safety Risks Arkansas: Final Authorization of State and Budget (OMB) for review. Hazardous Waste Management The EPA interprets Executive Order Program Revisions B. Paperwork Reduction Act (PRA) 13045 as applying only to those This action does not impose an regulatory actions that concern AGENCY: Environmental Protection information collection burden under the environmental health or safety risks that Agency (EPA). PRA. There is no burden imposed under the EPA has reason to believe may ACTION: Proposed rule. the PRA because this action proposes to disproportionately affect children, per disapprove submitted revisions that are the definition of ‘‘covered regulatory SUMMARY: The State of Arkansas has no longer consistent with federal laws action’’ in section 2–202 of the applied to EPA for Final authorization and regulations for the regulation and Executive Order. This action is not of the changes to its hazardous waste permitting of PM2.5. subject to Executive Order 13045 program under the Resource because it disapproves state permitting Conservation and Recovery Act (RCRA). C. Regulatory Flexibility Act (RFA) provisions that are inconsistent with EPA proposes to grant Final I certify that this action will not have federal laws and regulations for the authorization to the State of Arkansas. a significant economic impact on a regulation and permitting of PM2.5. In the ‘‘Rules and Regulations’’ section
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of this Federal Register, EPA is comment and with any disk or CD–ROM DATES: Comments on the proposed rule authorizing the changes by direct final you submit. If the EPA cannot read your should be submitted in writing to the rule. EPA did not make a proposal prior comment due to technical difficulties address shown below on or before to the direct final rule because we and cannot contact you for clarification, October 11, 2016, to be considered in believe this action is not controversial the EPA may not be able to consider the formation of a final rule. and do not expect comments that your comment. Electronic files should ADDRESSES: Submit comments oppose it. We have explained the avoid the use of special characters, any identified by DFARS Case 2016–D006, reasons for this authorization in the form of encryption, and be free of any using any of the following methods: preamble to the direct final rule. Unless defects or viruses. You can view and Æ Regulations.gov: http:// we get written comments which oppose copy Arkansas’s application and www.regulations.gov. Submit comments this authorization during the comment associated publicly available materials via the Federal eRulemaking portal by period, the direct final rule will become from 8:30 a.m. to 4 p.m. Monday entering ‘‘DFARS Case 2016–D006’’ effective 60 days after publication and through Friday at the following under the heading ‘‘Enter keyword or we will not take further action on this locations: Arkansas Department of ID’’ and selecting ‘‘Search.’’ Select the proposal. If we receive comments that Environmental Quality, 8101 Interstate link ‘‘Submit a Comment’’ that oppose this action, we will withdraw 30, Little Rock, Arkansas 72219–8913, corresponds with ‘‘DFARS Case 2016– the direct final rule and it will not take (501) 682–0876. Interested persons D006.’’ Follow the instructions provided effect. We will then respond to public wanting to examine these documents at the ‘‘Submit a Comment’’ screen. comments in a later final rule based on should make an appointment with the Please include your name, company this proposal. You may not have another office at least two weeks in advance. name (if any), and ‘‘DFARS Case 2016– opportunity for comment. If you want to FOR FURTHER INFORMATION CONTACT: D006’’ on your attached document. comment on this action, you must do so Alima Patterson, Region 6, Regional Æ Email: [email protected]. Include at this time. Authorization Coordinator, RCRA DFARS Case 2016–D006 in the subject DATES: Send your written comments by Permits Section (RPM), Multimedia line of the message. September 12, 2016. Planning and Permitting Division, EPA Æ Fax: 571–372–6094. Æ ADDRESSES: Submit any comments Region 6, 1445 Ross Avenue, Dallas, Mail: Defense Acquisition identified by Docket ID No. EPA–R06– Texas 75202–2733, (214) 665–8533 and Regulations System, Attn: Mr. Mark RCRA–2016–0176, by one of the Email address [email protected]. Gomersall, OUSD(AT&L)DPAP/DARS, Room 3B941, 3060 Defense Pentagon, following methods: SUPPLEMENTARY INFORMATION: Washington, DC 20301–3060. 1. Federal eRulemaking Portal: http:// For additional information, please see Comments received generally will be www.regulations.gov. Follow the on-line the direct final published in the ‘‘Rules posted without change to http:// instructions for submitting comments. and Regulations’’ section of today’s www.regulations.gov, including any 2. Email: [email protected]. Federal Register. 3. Mail: Alima Patterson, Region 6, personal information provided. To Dated: July 14, 2016. Regional Authorization Coordinator, confirm receipt of your comment(s), State/Tribal Oversight Section (6PD–O), Ron Curry, please check www.regulations.gov, Multimedia Planning and Permitting Regional Administrator, Region 6. approximately two to three days after Division, EPA Region 6, 1445 Ross [FR Doc. 2016–18432 Filed 8–10–16; 8:45 am] submission to verify posting (except Avenue, Dallas, Texas 75202–2733. BILLING CODE 6560–50–P allow 30 days for posting of comments 4. Hand Delivery or Courier. Deliver submitted by mail). your comments to Alima Patterson, FOR FURTHER INFORMATION CONTACT: Mr. Region 6, Regional Authorization DEPARTMENT OF DEFENSE Mark Gomersall, telephone 571–372– Coordinator, Permit Section (RPM), 6099. Defense Acquisition Regulations Multimedia Planning and Permitting SUPPLEMENTARY INFORMATION: Division, EPA Region 6, 1445 Ross System Avenue, Dallas, Texas 75202–2733. I. Background Instructions: Do not submit 48 CFR Parts 202, 212, 215, 234, 239, DoD is proposing to amend the information that you consider to be CBI and 252 DFARS to implement the requirements or otherwise protected through [Docket DARS–2016–0028] of sections 851 through 853 and 855 regulations.gov, or email. Direct your through 857 of the National Defense comment to Docket No. EPA–R06– RIN 0750–AJ01 Authorization Act (NDAA) for Fiscal RCRA–2016–0176. The Federal Defense Federal Acquisition Year (FY) 2016 (Pub. L. 114–92, enacted regulations.gov Web site is an Regulation Supplement: Procurement November 25, 2015), as well as the ‘‘anonymous access’’ system, which of Commercial Items (DFARS Case requirements of section 831 of the means the EPA will not know your 2016–D006) NDAA for FY 2013 (Pub. L. 112–239, identity or contact information unless enacted January 2, 2013). This rule also you provide it in the body of your AGENCY: Defense Acquisition provides guidance to contracting comment. If you send an email Regulations System, Department of officers to promote consistency and comment directly to the EPA without Defense (DoD). uniformity in the acquisition process. going through regulations.gov, your ACTION: Proposed rule. On August 3, 2015, DoD published email address will be automatically proposed DFARS rule 2013–D034 to captured and included as part of the SUMMARY: DoD is proposing to amend implement the requirements of section comment that is placed in the public the Defense Federal Acquisition 831 (80 FR 45918). Based on the docket and made available on the Regulation Supplement (DFARS) to comments received in response to that Internet. If you submit an electronic implement sections of the National proposed rule, and in order to comment, the EPA recommends that Defense Authorization Acts for Fiscal implement the requirements in sections you include your name and other Years 2013 and 2016 relating to 851 through 853 and 855 through 857 of contact information in the body of your commercial item acquisitions. the NDAA for FY 2016, DFARS rule
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2013–D034 was closed into this Response: Proposed rule 2013–D034 Comment: A number of respondents proposed DFARS rule. was drafted to implement the statutory stated that proposed rule 2013–D034 requirements from section 831 of the required an offeror to obtain II. Discussion and Analysis NDAA for FY 2013 to issue guidance inappropriate subcontractor data in A. Proposed DFARS Revisions and standards on the use of the order to make commerciality This rule proposes to amend the commercial item acquisition authority determinations and price DFARS as follows: under 10 U.S.C. 2306a and 2379. The reasonableness determinations. 1. Definitions of ‘‘market prices,’’ rule was issued to solicit feedback on Response: This proposed rule does the language and direction of that rule. ‘‘market research,’’ ‘‘nontraditional not change the existing Federal DoD has considered the comments defense contractor,’’ ‘‘relevant sales Acquisition Regulation (FAR) received on proposed rule 2013–D034, data,’’ and ‘‘uncertified cost data’’ are requirement that offerors shall obtain as well as the revised statutory language added. from subcontractors whatever from sections 851–853 and 855–857 of 2. DFARS 212.102, Applicability, is information is necessary to support a the NDAA for FY 2016, and has closed amended to instruct contracting officers determination of price reasonableness. on the treatment of prior commercial DFARS rule 2013–D034 into this proposed rule. Further, this rule provides that no cost item determinations and nontraditional information may be required from a defense contractors. Comment: A number of respondents commented that proposed rule 2013– prospective subcontractor in any case in 3. DFARS 212.209, Determination of which there are sufficient price reasonableness, is added to D034 would have a potential negative effect on research and development nongovernment sales of the same item provide a hierarchy of data for to establish reasonableness of price. contracting officers to consider when (R&D) and technology industries. making determinations of price Response: This proposed rule Comment: A number of respondents reasonableness. implements the authority provided took exception to the definition of 4. DFARS subpart 212.72, Limitation under section 857 of the NDAA for FY ‘‘market-based pricing’’ in proposed rule on conversion of procurement from 2016 to treat supplies and services 2013–D034. commercial acquisition procedures, is provided by nontraditional defense Response: The definition of market- added. contractors as commercial items, which based pricing in proposed DFARS rule 5. DFARS 215.402, Pricing policy, is will expand opportunities for R&D and 2013–D034 has not been retained in this amended to provide information technology firms to do business with proposed rule. DoD. regarding the contracting officer’s Comment: A number of respondents responsibility for determining if the Comment: A number of respondents asserted that proposed rule 2013–D034 took exception to the treatment of information provided by the offeror is modified commercial items and catalog sufficient to determine price would restrict what items qualify for items in proposed rule 2013–D034. reasonableness. commercial item determinations, and 6. DFARS 215.403–1, Prohibition on that the rule would eliminate ‘‘of a Response: This rule focuses on obtaining certified cost or pricing data type’’ and ‘‘newly offered for sale’’ from obtaining appropriate data for (10 U.S.C. 2306a and 41 U.S.C. chapter consideration for acquisition under determinations of price reasonableness, 35), is amended to provide a reference commercial item procedures. and provides for the consideration of to 212.102 regarding prior commercial Response: The rule incorporates the the same or similar items under item determinations. requirements for commercial item comparable and differing terms and 7. DFARS 215.404–1, Proposal determinations set forth under section conditions, and catalog prices, when analysis techniques, is amended to 851 of the NDAA for FY 2016. regularly maintained and supported by supplement the proposal analysis Regulations for commercial item relevant sales data, to serve as the basis procedures identified in the FAR. determinations for ‘‘items of a type’’ or for price reasonableness determinations. ‘‘items newly offered for sale’’ are 8. DFARS 234.7002, Policy, is Comment: A number of respondents unchanged by this rule. amended to incorporate the revisions in did not agree with the requirement for Comment: A number of respondents section 852 of the NDAA for FY 2016. sales data to support a commerciality expressed concern that proposed rule 9. DFARS 239.101, Policy, is amended determination in proposed rule 2013– 2013–D034 would exclude readily to incorporate the revisions in section D034. 855 of the NDAA for FY 2016. available data to determine 10. DFARS provisions 252.215–70XX, commerciality. Response: This proposed rule does 252.215–70YY, and 252.215–70ZZ are Response: In accordance with section not address additional requirements for added. 831 of the NDAA for FY 2013, this rule offerors to provide sales data to support will ensure that in cases in which a commerciality determination. This B. Analysis of Public Comments on uncertified cost information is required, rule expands the use of FAR part 12 Proposed DFARS Rule 2013–D034 the information shall be provided in the procedures. In accordance with section Fourteen respondents submitted form in which it is regularly maintained 853 of the NDAA for FY 2016, comments in response to proposed by the offeror in its business operations. contracting officers may presume that a DFARS rule 2013–D034. The major Further, in accordance with section 855 prior commercial item determination issues identified by the respondents in of the NDAA for FY 2016, this rule made by a military department, a response to DFARS rule 2013–D034 are directs that market research shall be Defense agency, or another component addressed as follows under this used, where appropriate, to inform price of the Department of Defense shall serve proposed rule: reasonableness determinations. as a determination for subsequent Comment: A number of the Additionally, DoD is establishing a procurements. Further, in accordance respondents stated that the rule is cadre of experts to provide expert with section 857 of the NDAA for FY inconsistent with statute and advice to the acquisition workforce in 2016, supplies and services provided by Congressional intent, and DoD should assisting with commercial item and nontraditional defense contractors may wait for the NDAA for FY 2016. price reasonableness determinations. be treated as commercial items.
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III. Applicability to Contracts at or determination that it is not in the best the law. DoD does not intend to make Below the Simplified Acquisition interest of the Federal Government to a determination to apply the Threshold and for Commercial Items, exempt commercial item contracts, the requirements to acquisitions below the Including Commercially Available Off- provision of law will apply to contracts SAT. for the acquisition of commercial items. the-Shelf Items IV. Executive Orders 12866 and 13563 Likewise, 41 U.S.C. 1907 governs the The objective of this proposed rule is applicability of laws to COTS items, Executive Orders (E.O.s) 12866 and to implement section 831 of the NDAA with the Administrator for the Office of 13563 direct agencies to assess all costs for FY 2013 (Pub. L. 112–239) and Federal Procurement Policy the decision and benefits of available regulatory sections 851 through 853 and 855 authority to determine that it is in the alternatives and, if regulation is through 857 of the NDAA for FY 2016 best interest of the Government to apply necessary, to select regulatory (Pub. L. 114–92). Sections 831, 851, and a provision of law to acquisitions of approaches that maximize net benefits 853 address requirements related to COTS items in the FAR. The Director, (including potential economic, commercial acquisitions. Specifically, DPAP, is the appropriate authority to environmental, public health and safety section 831 provides guidance and make comparable determinations for effects, distributive impacts, and training related to evaluation of price regulations to be published in the equity). E.O. 13563 emphasizes the reasonableness and requirements for DFARS, which is part of the FAR system importance of quantifying both costs requests for uncertified cost information of regulations. and benefits, of reducing costs, of for the purposes of evaluating price harmonizing rules, and of promoting reasonableness. Section 851 provides C. Determination flexibility. This is not a significant that a contracting officer may presume To implement section 831 of the regulatory action and, therefore, was not that a prior DoD commercial item NDAA for FY 2013 and sections 851 and subject to review under section 6(b) of determination made by DoD shall 853 of the NDAA for FY 2016, DoD is E.O. 12866, Regulatory Planning and service as a determination for proposing three new DFARS provisions: Review, dated September 30, 1993. This subsequent procurements of such items. DFARS 252.215–70XX, Requirements rule is not a major rule under 5 U.S.C. Section 853 provides that a contracting for Certified Cost or Pricing Data and 804. officer shall consider evidence provided Data Other Than Certified Cost or by an offeror of recent purchase prices Pricing Data; DFARS 252.215–70YY, V. Regulatory Flexibility Act paid by the Government for the same or Requirements for Submission of DoD does not expect this proposed similar commercial items when Proposals to the Administrative rule to have a significant economic establishing price reasonableness, Contracting Officer and Contract impact on a substantial number of small subject to certain conditions. Auditor; and 252.215–70ZZ, entities within the meaning of the A. Applicability to Contracts at or Below Requirements for Submission of Regulatory Flexibility Act, 5 U.S.C. 601, the Simplified Acquisition Threshold Proposals via Electronic Media. et seq. However, an initial regulatory DFARS 252.215–70XX allows for (SAT) flexibility analysis has been performed offerors to submit a written request for and is summarized as follows: 41 U.S.C. 1905 governs the an exception from the requirement to This rule proposes to amend the applicability of laws to contracts or submit certified cost or pricing data, by Defense Federal Acquisition Regulation subcontracts in amounts not greater submitting specific information to Supplement (DFARS) to provide than the SAT. It is intended to limit the support a commercial item exception or additional guidance concerning applicability of laws to such contracts or an exception based on prices set by law commercial item determinations and the subcontracts. 41 U.S.C. 1905 provides or regulation. DFARS 252.215–70YY appropriate amount and type of other that if a provision of law contains and DFARS 252.215–70ZZ are only than certified cost or pricing criminal or civil penalties, or if the FAR used in conjunction with DFARS information that contracting officers Council makes a written determination 252.215–70XX and only specify when a must require an offeror to submit in that it is not in the best interest of the proposal is required to be submitted to order to determine whether proposed Federal Government to exempt contracts the administrative contracting officer or prices for commercial items are fair and or subcontracts at or below the SAT, the cost auditor or if submission of the cost reasonable. law will apply to them. The Director, portion is required via certain electronic The objective of this rule is to Defense Procurement and Acquisition media. implement the requirements of sections Policy (DPAP), is the appropriate Given that section 831 of the NDAA 851 through 853 and 855 through 857 of authority to make comparable for FY 2013 and sections 851 and 853 the National Defense Authorization Act determinations for regulations to be of the NDAA for FY 2016 were enacted (NDAA) for Fiscal Year (FY) 2016 (Pub. published in the DFARS, which is part to address requirements related to the L. 114–92, enacted November 25, 2015), of the FAR system of regulations. treatment of commercial items and as well as the requirements of section submission of uncertified cost or pricing 831 of the NDAA for FY 2013 (Pub. L. B. Applicability to Contracts for the data to support evaluations of price Acquisition of Commercial Items, 112–239, enacted January 2, 2013). reasonableness for commercial items, According to data available in the Including Commercially Available Off- DoD intends to determine that it is in Federal Procurement Data System for the-Shelf (COTS) Items the best interest of the Federal fiscal year 2015, DoD awarded 51,796 41 U.S.C. 1906 governs the Government to apply the rule to contracts to 21,073 unique vendors applicability of laws to contracts for the contracts for the acquisition of using commercial procedures. Of those acquisition of commercial items, and is commercial items, including COTS contracts, 29,637 contracts intended to limit the applicability of items. An exception for contracts for the (approximately 57%) were awarded to laws to contracts for the acquisition of acquisition of commercial items, 14,286 unique small businesses commercial items. 41 U.S.C. 1906 including COTS items, would exclude (approximately 68%). provides that if a provision of law the contracts intended to be covered by This proposed rule does not impose contains criminal or civil penalties, or if the law, thereby undermining the any reporting, recordkeeping, or other the FAR Council makes a written overarching public policy purpose of compliance requirements, because the
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rule does not add to or remove any of Market research means a review of (1) Confirm that the prior the existing requirements for the existing systems, subsystems, determination was appropriate and still submission of other than certified cost capabilities, and technologies that are applicable; or or pricing data for the purpose of available or could be made available to (2) Issue a revised determination with determining the reasonableness of meet the needs of DoD in whole or in a written explanation of the basis for the prices proposed for commercial items. part. The review may include any of the revision (see 212.72). The rule does not duplicate, overlap, techniques for conducting market (iv) Nontraditional defense or conflict with any other Federal rules. research provided in section contractors. Supplies and services There are no known significant 10.002(b)(2) of the FAR and shall provided by nontraditional defense alternative approaches to the rule that include, at a minimum, contacting contractors may be treated as would meet the requirements. knowledgeable individuals in commercial items (10 U.S.C. 2380A). DoD invites comments from small Government and industry regarding This permissive authority is intended to business concerns and other interested existing market capabilities (section 855 enhance defense innovation and create parties on the expected impact of this of the National Defense Authorization incentives for cutting-edge firms to do rule on small entities. Act for Fiscal Year 2016 (Pub. L. 114– business with DoD. It is not intended to DoD will also consider comments 92)). recategorize current noncommercial from small entities concerning the Nontraditional defense contractor existing regulations in subparts affected items, however, when appropriate, means an entity that is not currently contracting officers may consider by this rule in accordance with 5 U.S.C. performing and has not performed any 610. Interested parties must submit such applying commercial item procedures to contract or subcontract for DoD that is the procurement of supplies and comments separately and should cite 5 subject to full coverage under the cost U.S.C. 610 (DFARS Case 2016–D006), in services from business segments that accounting standards prescribed correspondence. meet the definition of ‘‘nontraditional pursuant to 41 U.S.C. 1502 and the defense contractor’’ even though they VI. Paperwork Reduction Act regulations implementing such section, have been established under traditional This proposed rule does not contain for at least the 1-year period preceding defense contractors. The decision to any information collection requirements the solicitation of sources by DoD for apply commercial item procedures to that require the approval of the Office of the procurement or transaction (10 the procurement of supplies and Management and Budget under the U.S.C. 2302(9)). services from nontraditional defense Paperwork Reduction Act (44 U.S.C. ■ 4. Amend section 212.102 by— contractors does not constitute a chapter 35). ■ a. Adding a paragraph (a)(i) heading; requirement for a commercial item and determination and does not mean the List of Subjects in 48 CFR Parts 202, ■ b. Adding paragraphs (a)(ii), (a)(iii), item is commercial. 212, 215, 234, 239, and 252 and (a)(iv). ■ 5. Section 212.209 is added to read as Government procurement. The additions read as follows: follows: Jennifer L. Hawes, 212.102 Applicability. 212.209 Determination of price Editor, Defense Acquisition Regulations (a)(i) Commercial item determination. reasonableness. System. *** (a) Market research shall be used, Therefore, 48 CFR parts 202, 212, 215, (ii) Follow the procedures at PGI where appropriate, to inform price 234, 239, and 252 are proposed to be 212.102(a) regarding file documentation. reasonableness determinations. amended as follows: (iii) Prior commercial item (b) If the contracting officer ■ 1. The authority citation for parts 202, determination. This section implements determines that the information 212, 215, 234, 239, and 252 continues to 10 U.S.C. 2306a(b)(4). obtained through market research read as follows: (A) The contracting officer may pursuant to paragraph (a) of this section, Authority: 41 U.S.C. 1303 and 48 CFR presume that a prior commercial item is insufficient to determine the chapter 1. determination made by a military reasonableness of price, the contracting department, a defense agency, or officer shall consider information PART 202—DEFINITIONS OF WORDS another component of DoD shall serve submitted by the offeror of recent AND TERMS as a determination for subsequent purchase prices paid by the Government ■ 2. Amend section 202.101 by adding, procurements of such item. or commercial customers for the same or in alphabetical order, the definition of (B) If the contracting officer does not similar commercial items under ‘‘Uncertified cost data’’ to read as make the presumption described in comparable terms and conditions in follows: paragraph (a)(iii)(A) of this section and establishing price reasonableness on a instead chooses to proceed with a subsequent purchase if the contracting 202.101 Definitions. procurement of an item previously officer is satisfied that the prices * * * * * determined to be a commercial item previously paid remain a valid reference Uncertified cost data means the using procedures other than the for comparison. The contracting officer subset of ‘‘data other than certified cost procedures authorized for the shall consider the totality of other or pricing data’’ (see FAR 2.101) that procurement of a commercial item, the relevant factors such as the time elapsed relates to cost. contracting officer shall request a review since the prior purchase and any of the commercial item determination differences in the quantities purchased PART 212—ACQUISITION OF by the head of the contracting activity (10 U.S.C. 2306a(b)). COMMERCIAL ITEMS that will conduct the procurement. (c) If the contracting officer ■ 3. Section 212.001 is added to read as (C) Not later than 30 days after determines that the offeror cannot follows: receiving a request for review of a provide sufficient information as commercial item determination under described in paragraph (b) of this 212.001 Definitions. paragraph (a)(iii)(B) of this section, the section to determine the reasonableness As used in this part— head of a contracting activity shall— of price, the contracting officer should
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request the offeror to submit Act for Fiscal Year 2016 (Pub. L. 114– Market prices means current prices information on— 92). that are established in the course of (1) Prices paid for the same or similar ordinary trade between buyers and items sold under different terms and 212.7X01 Procedures. sellers free to bargain and that can be conditions; (a) Limitation. (1) For a procurement substantiated through competition or (2) Prices paid for similar levels of valued at more than $1 million, but less from sources independent of the work or effort on related products or than $100 million, previously procured offerors. services; as a prime contract using FAR part 12 Relevant sales data means (3) Prices paid for alternative procedures based on a commercial item information provided by an offeror of solutions or approaches; and determination made by a military sales of the same or similar items that (4) Other relevant information that department, a defense agency, or can be used to establish price can serve as the basis for determining another DoD component, prior to reasonableness taking into consideration the reasonableness of price. converting the procurement from the age, volume, and nature of the (d) Nothing in this section shall be commercial acquisition procedures to transactions (including any related construed to preclude the contracting noncommercial acquisition procedures discounts, refunds, rebates, offsets or officer from requiring the contractor to under FAR part 15, the contracting other adjustments). supply information that is sufficient to officer for the procurement shall ■ 9. Amend section 215.402 by— determine the reasonableness of price, determine in writing that— ■ a. Adding paragraph (a)(i); and regardless of whether or not the (i) The earlier use of commercial ■ b. Redesignating the introductory text contractor was required to provide such acquisition procedures under FAR part as paragraph (a)(ii). information in connection with any 12 was in error or based on inadequate The addition reads as follows: earlier procurement. If the contracting information; and 215.402 Pricing policy. officer determines that the pricing (ii) DoD will realize a cost savings information submitted is not sufficient compared to the cost of procuring a (a)(i) Pursuant to section 831 of the to determine the reasonableness of similar quantity or level of such item or National Defense Authorization Act for price, the contracting officer may service using commercial acquisition Fiscal Year 2013 (Pub. L. 112–239)— request other relevant information procedures. (A) The contracting officer is regarding the basis for price or cost, (2) In the case of a procurement responsible for determining if the including uncertified cost data such as valued at more than $100 million, a information provided by the offeror is labor costs, material costs, and other contract may not be awarded pursuant sufficient to determine price direct and indirect costs. to a conversion of the procurement reasonableness. This responsibility ■ 6. Amend section 212.301 by adding described in paragraph (a)(1) of this includes determining whether paragraph (f)(vi)(E) to read as follows: section until— information on the prices at which the (i) The head of the contracting activity same or similar items have previously 212.301 Solicitation provisions and been sold is adequate for evaluating the contract clauses for the acquisition of approves the determination made under reasonableness of price, and commercial items. paragraph (1) of this section; and determining the extent of uncertified (ii) A copy of the determination so * * * * * cost data that should be required in approved is provided to the Office of the (f) * * * cases in which price information is not (vi) * * * Under Secretary of Defense for adequate; (E) Use the provision 252.215–70XX, Acquisition, Technology, and Logistics. (B) The contracting officer shall not Requirements for Certified Cost or (b) In making a determination under limit the Government’s ability to obtain Pricing Data and Data Other Than paragraph (a) of this section, the any data that may be necessary to Certified Cost or Pricing Data, as determining official shall, at a support a determination of fair and prescribed at 215.408(6)(i) to comply minimum, consider the following reasonable pricing by agreeing to with section 831 of the National Defense factors: contract terms that preclude obtaining Authorization Act for Fiscal Year 2013 (1) The estimated cost of research and (Pub. L. 112–239) and section 853 of the necessary supporting information; and development to be performed by the (C) When obtaining uncertified cost National Defense Authorization Act for existing contractor to improve future data, the contracting officer shall require Fiscal Year 2016 (Pub. L. 114–92). products or services. (1) Use the basic provision as the offeror to provide the information in (2) The costs for DoD and the the form in which it is regularly prescribed at 215.408(6)(i)(A). contractor in assessing and responding (2) Use the alternate I provision as maintained in the offeror’s business to data requests to support a conversion operations. prescribed at 215.408(6)(i)(B). to noncommercial acquisition ■ 7. Add subpart 212.7X to read as * * * * * procedures. ■ follows: (3) Changes in purchase quantities. 10. Amend section 215.403–1 by adding paragraph (c)(3)(C) to read as Subpart 212.7X—Limitation on Conversion (4) Costs associated with potential of Procurement From Commercial procurement delays resulting from the follows: Acquisition Procedures conversion. 215.403–1 Prohibition on obtaining Sec. (c) The requirements of this subpart certified cost or pricing data (10 U.S.C. 212.7X00 Scope. terminate November 25, 2020. 2306a and 41 U.S.C. chapter 35). 212.7X01 Procedures. * * * * * PART 215—CONTRACTING BY (c) * * * Subpart 212.7X—Limitation on NEGOTIATION Conversion of Procurement From (3) * * * (C) When applying the commercial Commercial Acquisition Procedures ■ 8. Section 215.401 is added to read as follows: item exception under FAR 15.403– 212.7X00 Scope. 1(b)(3), see 212.102(a)(iii) regarding This subpart implements section 856 215.401 Definitions. prior commercial item determinations. of the National Defense Authorization As used in this subpart— * * * * *
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■ 11. Amend section 215.404–1 by— required in any case in which there are (vi) The contracting officer shall ■ a. Redesignating paragraphs (1), (2), sufficient nongovernment sales of the consider catalog prices to be reliable and (2)(i) through (iv) as paragraphs same item to establish reasonableness of when they are regularly maintained and (a)(i), (a)(ii), and (a)(ii)(A) through (D), price (section 831 of the National supported by relevant sales data respectively; Defense Authorization Act for Fiscal (including any related discounts, ■ b. Adding a paragraph (a) heading; Year 2013 (Pub. L. 112–239)). refunds, rebates, offsets, or other and (v) When evaluating pricing data, the adjustments). The contracting officer ■ c. Adding paragraph (b). contracting officer shall consider may request that the offeror support The additions read as follows: materially differing terms and differences between the proposed 215.404–1 Proposal analysis techniques. conditions, quantities, and market and price(s), catalog price(s), and relevant sales data. (a) General. economic factors. For similar items, the contracting officer shall also consider (vii) The contracting officer may * * * * * material differences between the similar consult with the DoD cadre of experts (b) Price analysis for commercial and item and the item being procured (FAR who are available to provide expert noncommercial items. (i) In the absence 15.404–1(b)(2)(ii)(B)). Material advice to the acquisition workforce in of adequate price competition in differences are those that could assisting with commercial item and response to the solicitation, pricing reasonably be expected to influence the price reasonableness determinations. based on market prices is the preferred contracting officer’s determination of The DoD cadre of experts is identified method to establish a fair and price reasonableness. The contracting at PGI 215.404–2(a)(iii). ■ reasonable price. officer shall consider the following 12. Amend section 215.408 by— (ii) If the contracting officer ■ factors when evaluating the relevance of a. In paragraph (3)(i)(A)(1), removing determines that the information the information available: ‘‘FAR 52.215–20, Requirement for’’ and obtained through market research is adding ‘‘DFARS 252.215–70XX, (A) Market prices. insufficient to determine the Requirements for Certified Cost or (B) Age of data. (1) Whether data is reasonableness of price, the contracting Pricing Data and’’ in its place; too old to be relevant depends on the officer shall consider information ■ b. In paragraph (3)(i)(A)(2), removing industry (e.g., rapidly evolving submitted by the offeror of recent ‘‘FAR 52.215–20’’ and adding ‘‘DFARS technologies), product maturity (e.g., purchase prices paid by the Government 252.215–70XX’’ in its place; stable), economic factors (e.g., new or commercial customers for the same or ■ c. Revising paragraph (3)(i)(B); sellers in the marketplace), and various ■ similar commercial items under d. Redesignating paragraphs (4)(i), other considerations. comparable terms and conditions in (4)(ii), and (5) as paragraphs (4)(i), establishing price reasonableness on a (2) A pending sale may be relevant if, (4)(ii), and (5), respectively; and ■ subsequent purchase if the contracting in the judgement of the contracting e. Adding paragraph (6). officer is satisfied that the prices officer, it is probable at the anticipated The revisions and addition read as follows: previously paid remain a valid reference price, and the sale could reasonably be expected to materially influence the for comparison. The contracting officer 215.408 Solicitation provisions and contracting officer’s determination of shall consider the totality of other contract clauses. relevant factors such as the time elapsed price reasonableness. The contracting officer may consult with the cognizant * * * * * since the prior purchase and any (3) * * * ACOs as they may have information differences in the quantities purchased (i)(A) * * * (section 853 of the National Defense about future sales. (B) Do not use 252.225–7003 in lieu Authorization Act for Fiscal Year 2016 (C) Volume and completeness of of DFARS 252.215–70XX in competitive (Pub. L. 114–92)). transaction data. Data must include a acquisitions; and sufficient number of transactions to (iii) If the contracting officer * * * * * determines that the offeror cannot represent the range of relevant sales to (6) When reasonably certain that the provide sufficient information as all types of customers. The data must submission of certified cost or pricing described in paragraph (b)(ii) of this also include key information, such as data or data other than certified cost or section to determine the reasonableness date, quantity sold, part number, part pricing data will be required— of price, the contracting officer should nomenclature, sales price, and (i) Use the basic or alternate of the request the offeror to submit customer. If the number of transactions provision at 252.215–70XX, information on— is insufficient or the data is incomplete, Requirements for Certified Cost or (A) Prices paid for the same or similar the contracting officer shall request Pricing Data and Data Other Than items sold under different terms and additional sales data to evaluate price Certified Cost or Pricing Data, in lieu of conditions; reasonableness. If the contractor cannot the provision at FAR 52.215–20, (B) Prices paid for similar levels of provide sufficient sales data, the Requirements for Certified Cost or work or effort on related products or contracting officer shall request other Pricing Data and Data Other Than services; relevant information. Certified Cost or Pricing Data, in (C) Prices paid for alternative (D) Nature of transactions. The nature solicitations, including solicitations solutions or approaches; and of a sales transaction includes the using FAR part 12 procedures for the (D) Other relevant information that information necessary to understand the acquisition of commercial items. can serve as the basis for determining transaction, such as terms and (A) Use the basic provision when the reasonableness of price. conditions, date, quantity sold, sale submission of certified cost or pricing (iv) If the contracting officer price, unique requirements, the type of data is required to be in the FAR Table determines that the pricing information customer (government, distributor, retail 15–2 format, or if it is anticipated, at the submitted is not sufficient to determine end-user, etc.), and related agreements. time of solicitation, that the submission the reasonableness of price, the It also includes warranties, key product of certified cost or pricing data may not contracting officer may request other technical specifications, maintenance be required. relevant information, to include cost agreements, and preferred customer (B) Use the alternate I provision to data. However, no cost data may be rewards. specify a format for certified cost or
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pricing data other than the format (i) Prices paid for the same or similar PART 252—ACQUISITION OF required by FAR Table 15–2; items under different terms and INFORMATION TECHNOLOGY (ii) Use the provision at 252.215– conditions; ■ 70YY, Requirements for Submission of 15. Add section 252.215–70XX to read (ii) Prices paid for similar levels of as follows: Proposals to the Administrative work or effort on related products or Contracting Officer and Contract services; 252.215–70XX Requirements for Certified Auditor, when using the basic or (iii) Prices paid for alternative Cost or Pricing Data and Data Other Than Certified Cost or Pricing Data. alternate of the provision at 252.215– solutions or approaches; and 70XX and copies of the proposal are to Basic. As prescribed in 215.408(6)(i) be sent to the ACO and contract auditor; (iv) Other relevant information that and (6)(i)(A), use the following and can serve as the basis for a price provision: (iii) Use the provision at 252.215– reasonableness determination. Requirements for Certified Cost or 70ZZ, Requirements for Submission of (3) If the contracting officer Pricing Data and Data Other Than Proposals via Electronic Media, when determines that the information Certified Cost or Pricing Data—Basic using the basic or alternate of the submitted pursuant to paragraphs (d)(1) (Date) provision at 252.215–70XX and and (2) of this section is not sufficient submission via electronic media is to determine the reasonableness of (a) Definitions. As used in this provision— required. price, the contracting officer may Market prices means current prices that are request the offeror to submit other established in the course of ordinary trade PART 234—MAJOR SYSTEM relevant information, including between buyers and sellers free to bargain ACQUISITION uncertified cost data. However, no and that can be substantiated through uncertified cost data may be required in competition or from sources independent of ■ the offerors. 13. Amend section 234.7002 by— any case in which there are sufficient ■ Nongovernment sales means sales of the a. In paragraph (a)(1)(i)(B), removing non-government sales of the same item ‘‘;’’ and adding ‘‘; and’’ in its place: supplies or services to nongovernmental to establish reasonableness of price. entities for purposes other than governmental ■ b. Removing paragraph (a)(1)(ii); (4) An offeror shall not be required to purposes. ■ c. Redesignating paragraph (a)(1)(iii) submit information described in Relevant sales data means information as paragraph (a)(1)(ii); paragraph (d)(3) of this section with provided by an offeror of sales of the same ■ d. In paragraph (b), removing ‘‘may’’ or similar items that can be used to establish regard to a commercially available off- price reasonableness taking into and adding ‘‘shall’’ in its place, and the-shelf item. An offeror may be removing ‘‘only if—’’ and adding ‘‘if— consideration the age, volume, and nature of required to submit such information the transactions (including any related ’’ in its place; with regard to any other item that was ■ discounts, refunds, rebates, offsets, or other e. Revising paragraph (b)(2); and developed exclusively at private adjustments). ■ f. In paragraph (c)(1), removing ‘‘only expense only after the head of the Sufficient nongovernment sales means if—’’ and adding ‘‘if—’’ in its place; contracting activity determines in relevant sales data that reflects market ■ g. Revising paragraph (c)(1)(ii); and writing that the information submitted pricing and contains enough information to ■ h. Revising paragraph (d). pursuant to paragraphs (d)(1) and (2) of make adjustments covered by FAR 15.404– The revisions read as follows: 1(b)(2)(ii)(B). this section is not sufficient to Uncertified cost data means the subset of 234.7002 Policy. determine the reasonableness of price. ‘‘data other than certified cost or pricing * * * * * data’’ (see FAR 2.101) that relates to cost. PART 239—ACQUISITION OF (b) Exceptions from certified cost or pricing (b) * * * INFORMATION TECHNOLOGY data. (1) In lieu of submitting certified cost (2) The contracting officer determines or pricing data, the Offeror may submit a in writing that the subsystem is a ■ 14. Revise section 239.101 to read as written request for exception by submitting commercial item. follows: the information described in the paragraphs (c) * * * (b)(1)(i) and (ii) of this section. The 239.101 Policy. (1) * * * Contracting Officer may require additional (ii) The contracting officer determines (1) A contracting officer may not enter supporting information, but only to the extent necessary to determine whether an in writing that the component or spare into a contract in excess of the simplified acquisition threshold for exception should be granted, and whether part is a commercial item. the price is fair and reasonable. * * * * * information technology products or (i) Exception for prices set by law or (d) Relevant information. This section services that are not commercial items regulation. Identification of the law or implements 10 U.S.C. 2379. unless the head of the contracting regulation establishing the prices offered. If (1) To the extent necessary to make a activity determines in writing that no the prices are controlled under law by determination of price reasonableness, commercial items are suitable to meet periodic rulings, reviews, or similar actions of a governmental body, attach a copy of the the contracting officer shall require the the agency’s needs, as determined through the use of market research controlling document, unless it was offeror to submit prices paid for the previously submitted to the contracting same or similar commercial items under appropriate to the circumstances (see FAR 10.001(a)(3)) (section 855 of the office. comparable terms and conditions by (ii) Commercial item exception. For a both Government and commercial National Defense Authorization Act for commercial item exception, the Offeror shall customers. Fiscal Year 2016 (Pub. L. 114–92)). submit, at a minimum, information that is (2) If the contracting officer (2) See subpart 208.74 when acquiring adequate for evaluating the reasonableness of determines that the offeror cannot commercial software or software the price for this acquisition, including maintenance. prices at which the same item or similar provide sufficient information described items have been sold in the commercial in paragraph (d)(1) of this section to (3) See 227.7202 for policy on the market. Such information shall include— determine the reasonableness of price, acquisition of commercial computer (A) For items previously determined to be the contracting officer shall request the software and commercial computer commercial, the contract and military offeror to submit information on— software documentation. department, defense agency, or other DoD
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component that rendered such Current Cost or Pricing Data, as prescribed by Market prices means current prices that are determination; FAR 15.406–2. established in the course of ordinary trade (B) For items priced based on a catalog— (d) Requirements for data other than between buyers and sellers free to bargain (1) A copy of or identification of the certified cost or pricing data. and that can be substantiated through Offeror’s current catalog showing the price (1) Data other than certified cost or pricing competition or from sources independent of for that item; and data submitted in accordance with this the offerors. (2) Either of the following two statements provision shall include all data necessary to Nongovernment sales means sales of the included in the proposal: permit a determination that the proposed supplies or services to nongovernmental (i) ‘‘The catalog pricing provided with this price is fair and reasonable, to include the entities for purposes other than governmental proposal is consistent with all relevant sales requirements in DFARS 215.402(a)(i) and purposes. data (including any related discounts, DFARS 215.404–1(b). Relevant sales data means information refunds, rebates, offsets or other (2) In cases in which uncertified cost data provided by an offeror of sales of the same adjustments). Relevant sales data shall be is required, the information shall be provided or similar items that can be used to establish made available upon request of the in the form in which it is regularly price reasonableness taking into Contracting Officer.’’; or maintained by the Offeror or prospective consideration the age, volume, and nature of (ii) ‘‘The catalog pricing provided with this subcontractor in its business operations. the transactions (including any related proposal is not consistent with all relevant (3) The Offeror shall provide information discounts, refunds, rebates, offsets, or other sales data, due to the following: [Insert a described as follows: [Insert description of adjustments). detailed description of differences or the data and the format that are required, Sufficient nongovernment sales means inconsistencies between or among the including access to records necessary to relevant sales data that reflects market relevant sales data, the proposed price, and permit an adequate evaluation of the pricing and contains enough information to the catalog price (including any related proposed price in accordance with FAR make adjustments covered by FAR 15.404– discounts, refunds, rebates, offsets, or other 15.403–3]. 1(b)(2)(ii)(B). adjustments)].’’; (4) Within 10 days of a written request Uncertified cost data means the subset of (C) For items priced based on market from the Contracting Officer for additional ‘‘data other than certified cost or pricing pricing, a description of the nature of the information to support proposal analysis, the data’’ (see FAR 2.101) that relates to cost. commercial market, the methodology used to Offeror shall provide either the requested (b) Exceptions from certified cost or pricing establish a market price, and all relevant information, or a written explanation for the data. sales data. The description shall be adequate inability to fully comply. (1) In lieu of submitting certified cost or to permit the Department of Defense to verify (5) Subcontract price evaluation. pricing data, the Offeror may submit a the accuracy of the description; (i) Offerors shall obtain from written request for exception by submitting (D) For items included on an active Federal subcontractors the information necessary to the information described in the following Supply Service Multiple Award Schedule support a determination of price paragraphs. The Contracting Officer may contract, proof that an exception has been reasonableness, as described in FAR part 15 require additional supporting information, granted for the schedule item; or and DFARS part 215. but only to the extent necessary to determine (E) For items provided by nontraditional (ii) No cost information may be required whether an exception should be granted, and defense contractors, a statement that the from a prospective subcontractor in any case whether the price is fair and reasonable. entity is not currently performing and has not in which there are sufficient nongovernment (i) Exception for price set by law or performed, for at least the 1-year period sales of the same item to establish regulation. Identification of the law or preceding the solicitation of sources by the reasonableness of price. regulation establishing the price offered. If Department of Defense for the procurement (iii) If the Offeror relies on relevant sales the price is controlled under law by periodic or transaction, any contract or subcontract for data for similar items to determine the price rulings, reviews, or similar actions of a the Department of Defense that is subject to is reasonable, the Offeror shall obtain only governmental body, attach a copy of the full coverage under the cost accounting that technical information necessary— controlling document, unless it was standards prescribed pursuant to 41 U.S.C. (A) To support the conclusion that items previously submitted to the contracting 1502 and the regulations implementing such are technically similar; and office. section. (B) To explain any technical differences (ii) Commercial item exception. For a (2) The Offeror grants the Contracting that account for variances between the commercial item exception, the Offeror shall Officer or an authorized representative the proposed prices and the sales data presented. submit, at a minimum, information that is right to examine, at any time before award, (e) Subcontracts. The Offeror shall insert adequate for evaluating the reasonableness of books, records, documents, or other directly the substance of this provision, including the price for this acquisition, including pertinent records to verify any request for an this paragraph (e), in subcontracts exceeding prices at which the same item or similar exception under this provision, and to the simplified acquisition threshold defined items have been sold in the commercial determine the reasonableness of price. in FAR part 2. The Offeror shall require market. Such information shall include— (c) Requirements for certified cost or prospective subcontractors to adhere to the (A) For items previously determined to be pricing data. If the Offeror is not granted an requirements of— commercial, the contract and military exception from the requirement to submit (1) Paragraphs (c) and (d) of this provision department, defense agency, or other DoD certified cost or pricing data, the following for subcontracts above the threshold for component that rendered such applies: submission of certified cost or pricing data in determination; (1) The Offeror shall prepare and submit FAR 15.403–4; and (B) For items priced based on a catalog— certified cost or pricing data and supporting (2) Paragraph (d) of this provision for (1) A copy of or identification of the attachments in accordance with the subcontracts exceeding the simplified Offeror’s current catalog showing the price instructions contained in Table 15–2 of FAR acquisition threshold defined in FAR part 2. for that item; and 15.408, which is incorporated by reference (End of provision) (2) Either of the following two statements with the same force and effect as though it included in the proposal: were inserted here in full text. The Alternate I. As prescribed in (i) ‘‘The catalog pricing provided with this instructions in Table 15–2 are incorporated 215.408(6)(i) and (6)(i)(B), use the proposal is consistent with all relevant sales as a mandatory format to be used in any following provision, which includes a data (including any related discounts, resulting contract, unless the Contracting different paragraph (c)(1). refunds, rebates, offsets or other Officer and the Offeror agree to a different adjustments). Relevant sales data shall be format and change this provision to use Requirements for Certified Cost or made available upon request of the Alternate I. Pricing Data and Data Other Than Contracting Officer.’’; or (2) As soon as practicable after agreement Certified Cost or Pricing Data— (ii) ‘‘The catalog pricing provided with this on price, but before contract award (except Alternate I (Date) proposal is not consistent with all relevant for unpriced actions such as letter contracts), sales data, due to the following: [Insert a the Offeror shall submit a Certificate of (a) Definitions. As used in this provision— detailed description of differences or
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inconsistencies between or among the (3) The Offeror shall provide information 252.215–70ZZ Requirements for relevant sales data, the proposed price, and described as follows: [Insert description of Submission of Proposals via Electronic the catalog price (including any related the data and the format that are required, Media. discounts, refunds, rebates, offsets, or other including access to records necessary to As prescribed in 215.408(6)(iii), use adjustments)].’’; permit an adequate evaluation of the the following provision: (C) For items priced based on market proposed price in accordance with FAR pricing, a description of the nature of the 15.403–63]. Requirements for Submission of commercial market, the methodology used to (4) Within 10 days of a written request Proposals Via Electronic Media (Date) establish a market price, and all relevant from the Contracting Officer for additional sales data. The description shall be adequate The Offeror shall submit the cost portion to permit the Department of Defense to verify information to support proposal analysis, the of the proposal via the following electronic the accuracy of the description; Offeror shall provide either the requested media: [Insert media format, e.g., electronic (D) For items included on an active Federal information, or a written explanation for the spreadsheet format, electronic mail, etc.]. Supply Service Multiple Award Schedule inability to fully comply. (End of provision) contract, proof that an exception has been (5) Subcontract price evaluation. (i) [FR Doc. 2016–18704 Filed 8–10–16; 8:45 am] granted for the schedule item; or Offerors shall obtain from subcontractors the BILLING CODE 5001–06–P (E) For items provided by nontraditional information necessary to support a defense contractors, a statement that the determination of price reasonableness, as entity is not currently performing and has not described in FAR part 15 and DFARS part performed, for at least the 1-year period 215. DEPARTMENT OF COMMERCE preceding the solicitation of sources by the (ii) No cost information may be required Department of Defense for the procurement from a prospective subcontractor in any case National Oceanic and Atmospheric or transaction, any contract or subcontract for in which there are sufficient nongovernment Administration the Department of Defense that is subject to sales of the same item to establish full coverage under the cost accounting reasonableness of price. standards prescribed pursuant to 41 U.S.C. 50 CFR Part 622 (iii) If the Offeror relies on relevant sales 1502 and the regulations implementing such [Docket No. 131113952–6673–01] section. data for similar items to determine the price is reasonable, the Offeror shall obtain only (2) The Offeror grants the Contracting RIN 0648–BD78 Officer or an authorized representative the that technical information necessary— right to examine, at any time before award, (A) To support the conclusion that items are technically similar; and Fisheries of the Caribbean, Gulf of books, records, documents, or other directly Mexico, and South Atlantic; Snapper- pertinent records to verify any request for an (B) To explain any technical differences exception under this provision, and to that account for variances between the Grouper Fishery Off the Southern determine the reasonableness of price. proposed prices and the sales data presented. Atlantic States; Regulatory (c) Requirements for certified cost or (e) Subcontracts. The Offeror shall insert Amendment 16 pricing data. If the Offeror is not granted an the substance of this provision, including AGENCY: National Marine Fisheries exception from the requirement to submit this paragraph (e), in all subcontracts certified cost or pricing data, the following exceeding the simplified acquisition Service (NMFS), National Oceanic and applies: threshold defined in FAR part 2. The Offeror Atmospheric Administration (NOAA), (1) The Offeror shall submit certified cost shall require prospective subcontractors to Commerce. or pricing data, data other than certified cost adhere to the requirements of— ACTION: Proposed rule; request for or pricing data, and supporting attachments (1) Paragraph (c) and (d) of this provision comments. in the following format: [Insert description of for subcontracts above the threshold for the data and format that are required, and submission of certified cost or pricing data in SUMMARY: NMFS proposes regulations to include access to records necessary to permit implement Regulatory Amendment 16 an adequate evaluation of the proposed price FAR 15.403–4; and in accordance with FAR 15.408, Table 15–2, (2) Paragraph (d) of this provision for to the Fishery Management Plan for the Note 2. The Contracting Officer shall insert subcontracts exceeding the simplified Snapper-Grouper Fishery of the South the description at the time of issuing the acquisition threshold defined in FAR part 2. Atlantic Region (FMP) (Regulatory solicitation or specify that the format (End of provision) Amendment 16), as prepared and regularly maintained by the offeror or submitted by the South Atlantic Fishery ■ prospective subcontractor in its business 16. Add section 252.215–70YY to read Management Council (Council). If operations will be acceptable. The as follows: implemented, this proposed rule would Contracting Officer may amend the 252.215–70YY Requirements for revise the current seasonal prohibition description as the result of negotiations]. on the use of black sea bass pot gear in (2) As soon as practicable after agreement Submission of Proposals to the on price, but before contract award (except Administrative Contracting Officer and the South Atlantic and add additional for unpriced actions such as letter contracts), Contract Auditor. gear marking requirements for black sea bass pot gear. The purpose of this the Offeror shall submit a Certificate of As prescribed in 215.408(6)(ii), use proposed rule is to reduce the adverse Current Cost or Pricing Data, as prescribed by the following provision: FAR 15.406–2. socioeconomic impacts from the current (d) Requirements for data other than Requirements for Submission of seasonal black sea bass pot gear certified cost or pricing data. Proposals to the Administrative prohibition while continuing to protect (1) Data other than certified cost or pricing Contracting Officer and Contract Endangered Species Act (ESA) listed data submitted in accordance with this whales in the South Atlantic. This provision shall include all data necessary to Auditor (Date) permit a determination that the proposed proposed rule would also help better When the proposal is submitted, the identify black sea bass pot gear in the price is fair and reasonable, to include the Offeror shall also submit one copy each to— South Atlantic. requirements in DFARS 215.402(a)(i) and (a) The Administrative Contracting Officer; DFARS 215.404–1(b). and DATES: Written comments must be (2) In cases in which uncertified cost data (b) The Contract Auditor. received on or before September 12, is required, the information shall be provided (End of provision) 2016. in the form in which it is regularly maintained by the Offeror or prospective ■ 17. Add section 252.215–70ZZ to read ADDRESSES: You may submit comments subcontractor in its business operations. as follows: on the proposed rule, identified by
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‘‘NOAA–NMFS–2013–0165’’ by either 50 CFR part 622 under the authority of the South Atlantic extends from of the following methods: the Magnuson-Stevens Fishery approximately November 1 through • Electronic Submission: Submit all Conservation and Management Act April 30, each year. Since 2010, black electronic public comments via the (Magnuson-Stevens Act). sea bass harvest levels have reached the Federal e-Rulemaking Portal. Go to commercial quota, thereby triggering Background www.regulations.gov/ accountability measures (AMs) to close #!docketDetail;D=NOAA-NMFS-2013- On December 4, 2013, NMFS the commercial sector. In recent years, 0165, click the ‘‘Comment Now!’’ icon, published a notice of intent to prepare these in-season commercial closures complete the required fields, and enter a draft EIS for Regulatory Amendment have occurred prior to November 1, the or attach your comments. 16 and requested public comment (78 beginning of the right whale calving • Mail: Submit written comments to FR 72968). On October 23, 2015, the season, therefore, Council and NMFS Nikhil Mehta, Southeast Regional notice of availability for the draft EIS actions to prevent black sea bass pot Office, NMFS, 263 13th Avenue South, was published and public comment was gear from being in the water during St. Petersburg, FL 33701. also requested (80 FR 64409). The notice periods of higher whale concentrations Instructions: Comments sent by any of availability for the final EIS for had been unnecessary to restrict other method, to any other address or Regulatory Amendment 16 published on interactions between black sea bass pot individual, or received after the end of July 1, 2016 (81 FR 43198). fishers and ESA-listed whales. However, the comment period, may not be The black sea bass stock in the South NMFS determined that the increase in considered by NMFS. All comments Atlantic was most recently assessed the black sea bass commercial ACL received are a part of the public record through the Southeast Data, Assessment, implemented through Regulatory and will generally be posted for public and Review (SEDAR) stock assessment Amendment 19 could extend the viewing on www.regulations.gov process in 2013 (SEDAR 25 Update). commercial black sea bass fishing without change. All personal identifying The SEDAR 25 Update determined that season beyond November 1, and into a information (e.g., name, address, etc.), the black sea bass stock in the South time period when a higher confidential business information, or Atlantic is not undergoing overfishing concentration of endangered whales are otherwise sensitive information and is not overfished. The SEDAR 25 known to migrate through black sea bass submitted voluntarily by the sender will Update indicated that the black sea bass fishing grounds. be publicly accessible. NMFS will commercial and recreational sector Management Measures Contained in accept anonymous comments (enter annual catch limits (ACLs) could be This Proposed Rule ‘‘N/A’’ in the required fields if you wish increased without jeopardizing the to remain anonymous). health of the population, and as a result, the black sea bass commercial and This proposed rule would implement Electronic copies of Regulatory recreational ACLs were increased modifications to the current black sea Amendment 16, which includes an through the final rule to implement bass pot seasonal closure. This proposed environmental impact statement (EIS), a Regulatory Amendment 19 to the FMP rule would also modify the buoy line Regulatory Flexibility Act (RFA) (78 FR 58249, September 23, 2013). rope marking requirements for black sea analysis, and a regulatory impact Additionally, Regulatory Amendment bass pots. review, may be obtained from the 19 established an annual prohibition on Southeast Regional Office Web site at Black Sea Bass Pot Gear Seasonal the use of black sea bass pots from https://sero.nmfs.noaa.gov/sustainable_ Prohibition November 1 through April 30. During fisheries/s_atl/sg/2013/reg_am16/ this closure, no person is allowed to As established through Regulatory index.html. harvest or possess black sea bass in or Amendment 19, black sea pot gear is Comments regarding the burden-hour from the South Atlantic exclusive prohibited in the South Atlantic EEZ estimates, clarity of the instructions, or economic zone (EEZ) either with sea annually from November 1 through other aspects of the collection-of- bass pots or from a vessel with sea bass April 30. This proposed rule would information requirements contained in pots on board. In addition, sea bass pots retain the November 1 through April 30 this proposed rule (see the Classification must be removed from the water in the prohibition on the use of black sea bass section of the preamble) may be South Atlantic EEZ prior to November pots, but would modify the boundaries submitted in writing to Adam Bailey, 1, and may not be on board a vessel in of the prohibition. This rule would Southeast Regional Office, NMFS, 263 the South Atlantic EEZ during this revise the South Atlantic EEZ-wide 13th Avenue South, St. Petersburg, FL seasonal closure. The black sea bass pot seasonal closure to a closure of two 33701; or the Office of Management and _ seasonal prohibition became effective temporal and spatial components. The Budget (OMB), by email at OIRA on October 23, 2013. first closure period would be for the [email protected], or by fax to Through Regulatory Amendment 19, months of November and April, and the 202–395–5806. the seasonal sea bass pot prohibition second closure period would be for the FOR FURTHER INFORMATION CONTACT: was established as a precautionary months of December through March Nikhil Mehta, telephone: 727–824– measure to prevent interactions between each year. The first closure period is 5305, email: [email protected]. black sea bass pot gear and ESA-listed illustrated by the Figure 1 below. During SUPPLEMENTARY INFORMATION: Black sea whales during periods of large whale November and April, the eastern bass is in the snapper-grouper fishery migrations and during the right whale boundary of the sea bass pot closed area and is managed under the FMP. The calving season off the U.S. southeastern off North and South Carolina is closer FMP was prepared by the Council and coast. The large whale migration period to shore than during the months of is implemented through regulations at and the right whale calving season in December through March.
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Figure 1. November and April Black Sea Bass Pot Prohibition
3
Atlantic Ocean
Seasonal Black Sea Bass Pot Prohibition Nov 1-30 and Apr 1-30
MM I 0 15 30 60 90 120 150 Nautical Miles
During the second closure period and Florida represent the primary right percent of right whale sightings off the from December through March each whale calving grounds in the South North Carolina/South Carolina area, and year, the sea bass pot closure area would Atlantic EEZ. This bathymetric area is Florida/Georgia area, respectively. The be larger off the entire South Atlantic based on right whale sightings (all proposed sea bass pot prohibited area coast than it would be during November demographic segments) and sightings for December through March is and April, particularly off Georgia and per unit of effort (proxy of density) by illustrated in Figure 2 below. Florida. Waters off the coast of Georgia depth and captures 97 percent and 96
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Figure 2. December Through March Black Sea Bass Pot Prohibition
Atlantic Ocean
Seasonal Black Sea Bass Pot Prohibition Dec 1- Mar 31
M M I 0 15 30 60 90 120 150 Nautical Miles
The Council has determined that winter season and created overlays of peer-reviewed journal, ‘‘Marine and reducing the size of the current black the co-occurrence of the seasonal Coastal Fisheries’’ by Farmer et al. sea bass pot prohibition would continue distribution of black sea bass pot gear (2016) which is available at the to provide the necessary protection to and North Atlantic right whales as a following Web site: http://dx.doi.org/ ESA-listed whales in the South Atlantic. proxy for the relative risk of right whale 10.1080/19425120.2016.1146181. The Council based this conclusion on entanglements under each of the As described in Regulatory an analysis that simulated the potential proposed alternatives in Regulatory Amendment 16, the alternatives for all black sea bass landings of black sea bass Amendment 16. The findings of this of the proposed black sea bass pot pot endorsement holders during a analysis were recently published in the closures were developed considering
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the following spatial, temporal, and CFR 229.32(b)). The ALWTRP includes or record-keeping requirements are environmental variables. Spatial at least three trap/pot areas where black introduced by this proposed rule. variation in the distribution of right sea bass pots may be fished. This However, the proposed rule would whales is influenced by local includes the Offshore Trap/Pot Waters require that for each sea bass pot buoy environmental variables such as water Area, Southern Nearshore Trap/Pot line an additional 12-inch (30.5 cm) temperature, depth, and distance to Waters Area, and the U.S. Southeast wide purple band be added at the end shore. The closed areas proposed in this Restricted Area North. of, and directly adjacent to, each of the rule incorporate these environmental Regulatory Amendment 16 would currently required 12-inch (30.5 cm) variables and spatial distribution modify the current gear marking colored marks required under the patterns to minimize the risk of requirements under the FMP by ALWTRP discussed above. Similar to interactions of marine mammals with requiring additional markings for black the current requirements under the black sea bass pot gear. During the sea bass pot buoy lines. This proposed ALWTRP, this marking requirement months of November and April, the area rule would require that an additional does not need an additional expertise on proposed to be closed through this rule 12-inch (30.5 cm) wide purple band be the part of fishermen. NMFS estimates would prohibit black sea bass pots added onto the buoy line at the end of, that this requirement would cost each inshore of an area which represents 91 and directly adjacent to, each of the pot endorsement holder about an percent of historical right whale currently required 12-inch (30.5 cm) additional $5 annually if surveyor’s tape sightings off Florida and Georgia; and colored marks required through the is used for line marking, or about an off North Carolina and South Carolina, ALWTRP described in 50 CFR additional $90 annually if paint is used the black sea bass pot prohibition would 229.32(b). Within the Council’s instead. The estimated additional apply to Federal waters shallower than jurisdiction for managing black sea bass, annual time burden associated with the 25 m. During December through March, the proposed additional black sea bass proposed marking requirement is up to the area proposed to be closed through gear marking requirements would be approximately 3.5 hours annually. this rule would prohibit black sea bass required to be in place in Federal waters NMFS expects this proposed rule to pots shallower than 25 m off Florida from September 1 through May 31 in the directly affect federally permitted and Georgia; and from the Georgia/ Offshore Trap/Pot Waters Area and the commercial fishermen fishing for black South Carolina border to Cape Hatteras, Southern Nearshore Trap/Pot Waters sea bass in the South Atlantic. For RFA North Carolina, the prohibition would Area, and from November 15 through purposes only, NMFS has established a apply to Federal waters that are May 31 in the Southeast U.S. Restricted small business size standard for shallower than 30 m in depth. This Areas North. The Council’s requirement businesses, including their affiliates, bathymetric area is based on right whale that sea bass pot gear have additional whose primary industry is commercial sightings by depth and captures 97 gear-specific marking would help fishing (see 50 CFR 200.2). A business percent and 96 percent of right whale distinguish black sea bass pots from primarily engaged in commercial fishing sightings off the North Carolina/South other types of trap and pot gear in the (NAICS code 11411) is classified as a Carolina area, and Florida/Georgia area, South Atlantic EEZ. small business if it is independently respectively. NMFS is currently owned and operated, is not dominant in Classification conducting an ESA section 7 its field of operation (including consultation. Pursuant to section 304(b)(1)(A) of the affiliates), and has combined annual Additionally, the proposed closure Magnuson-Stevens Act, the NMFS receipts not in excess of $11 million for areas listed in this rule are expected to Assistant Administrator has determined all its affiliated operations worldwide. minimize adverse socioeconomic effects that this proposed rule is consistent The $11 million standard became of the current November through April with Regulatory Amendment 16, other effective on July 1, 2016, and is to be black sea bass pot prohibition by provisions of the Magnuson-Stevens used in place of the U.S. Small Business increasing the area available to fish Act, and other applicable laws, subject Administration’s (SBA) current using black sea bass pots. to further consideration after public standards of $20.5 million, $5.5 million, This proposed rule would also allow comment. and $7.5 million for the finfish (NAICS for vessel transit through the proposed This proposed rule has been 114111), shellfish (NAICS 114112), and black sea bass pot closed areas determined to be not significant for other marine fishing (NAICS 114119) providing the black sea bass pot gear is purposes of Executive Order 12866. sectors of the U.S. commercial fishing appropriately stowed on the vessel. NMFS prepared an initial regulatory industry in all NMFS rules subject to Transit would be defined as non-stop flexibility analysis (IRFA), as required the RFA after July 1, 2016. progression through the closed area; by section 603 of the RFA, for this Pursuant to the RFA, and prior to July fishing gear appropriately stowed means proposed rule. The IRFA describes the 1, 2016, an IRFA was developed for this all black sea bass pot gear must be out economic impact this proposed rule, if regulatory action using SBA’s size of the water and on board the deck of adopted, would have on small entities. standards. NMFS has reviewed the the vessel. All buoys must either be A description of the action, why it is analyses prepared for this regulatory disconnected from the gear or stowed being considered, the objectives of, and action in light of the new size standard. within the sea bass pot. The legal basis for this action are contained All of the entities directly affected by disconnected buoys may remain on at the beginning of this section in the this regulatory action are commercial deck. preamble and in the SUMMARY section of fishing businesses and were considered the preamble. A copy of the full analysis small under the SBA’s size standards, Gear Marking Requirements is available from NMFS (see and they all would continue to be Fish traps and pot buoy lines, ADDRESSES). A summary of the IRFA considered small under the new NMFS including black sea bass pots, are follows. standard. Thus, NMFS has determined currently required to have specific line The Magnuson-Stevens Act provides that the new size standard does not marking requirements during certain the statutory basis for this proposed affect analyses prepared for this times of the year and in the locations rule. No duplicative, overlapping, or regulatory action. described in the Atlantic Large Whale conflicting Federal rules have been As of December 31, 2014, there were Take Reduction Plan (ALWTRP)(see 50 identified. In addition, no new reporting 32 holders of the Federal black sea bass
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pot endorsement to the snapper-grouper depths greater than approximately 25 m vessel. However, revenue losses to commercial permit. Since that time one from November 1 through 30 and from vessels using gear other than sea bass endorsement holder has dropped out of April 1 through 30 off North and South pots would be between 1 and 2 percent the black sea bass pot component of the Carolina; and, at depths greater than of their average annual revenue of commercial sector, but the current approximately 30 m from December 1 $54,651 per vessel. Therefore, on a per analysis uses 32 endorsement holders through March 31 off North and South vessel basis, the revenue gains to the pot because historical records of these 32 Carolina. In addition, the proposed rule endorsement holders could potentially endorsement holders were used in would require black sea bass pot be substantial, whereas the revenue Regulatory Amendment 16. Retaining endorsement holders to put three 12- losses to the other gear users would be the records of 32 endorsement holders inch (30.5 cm) purple markings on each relatively small. is not expected to inflate the analytical sea bass pot buoy line adjacent to the The proposed requirement on black results because only an average of 31 already required colors on these lines sea bass pot endorsement holders to put vessels fished for black sea bass using under the ALWTRP. The marks are three 12-inch (30.5 cm) purple markings pots. commonly made with either paint or on each pot buoy line adjacent to the From the 2000/2001 through 2013/ surveyor’s tape. As described in the already required colors under the 2014 fishing years, these endorsement codified text, other materials may also ALWTRP would cost each endorsement holders used an average of 31 vessels be used for marking the line. holder about an additional $5 annually fishing for black sea bass using pots. The proposed modification to the if surveyor’s tape is used, or about an additional $90 annually if paint is used These vessels generated total combined current prohibition on the use of black revenues (2014 dollars) of $732,717 instead. This cost is relatively small. sea bass pot gear would have contrasting from black sea bass, $228,468 from other The following discussion describes economic effects on the two major species jointly landed with black sea the alternatives that were not selected as groups of participants in the commercial bass, and $248,662 from all other preferred by the Council. In this section, harvest of black sea bass. The proposed species in trips where black sea bass the term ‘‘overall revenues’’ refers to the action would benefit those using pots was not caught. The average annual sum of revenues from vessels using for harvesting black sea bass, and given revenue per vessel from all species, black sea bass pots and revenues from that the commercial ACL is predicted to including black sea bass, landed by vessels using gear other than black sea be fully taken, benefits to users of other these vessels was $38,715 (2014 bass pots. gear would decrease. The combined dollars). During the same time period, Twelve alternatives, including the an average of 215 vessels using gear dockside revenues (2014 dollars) for all preferred alternative as described above, other than sea bass pots landed at least pot gear vessels are estimated to were considered for modifying the 1 lb (0.45 kg) of black sea bass. These increase annually between $113,964 and November 1 through April 30 vessels generated dockside total $185,068 based on 2000–2013 average prohibition on the use of black sea bass combined revenues (2014 dollars) of black sea bass price, or between pot gear. The first alternative, the no $199,574 from black sea bass, $3.838 $163,606 and $260,355 based on 2011– action alternative, would maintain the million from other species jointly 2013 average black sea bass price. Two current economic benefits to all landed with black sea bass, and $7.680 price levels are used to provide some participants in the fishery as well as million from all other species in trips bounds on the range of revenue effects. provide the least likelihood of right where black sea bass was not caught. The lower bound is based on the 2000– whales getting entangled with black sea The average annual revenue per vessel 2013 average black sea bass price and bass pot lines. However, this alternative from all species, including black sea the upper bound is based on the 2011– would not address the need to reduce bass, landed by these vessels was 2013 average black sea bass price. In the adverse socioeconomic effects of the $54,651 (2014 dollars). Vessels that contrast, the combined dockside current prohibition on the use of black caught and landed black sea bass may revenues (2014 dollars) for all non-pot sea bass pot gear. also operate in other fisheries, the gear vessels are estimated to decrease The second alternative would apply revenues of which are not known and annually between $68,323 and $141,527 the black sea bass pot closure to the area are not reflected in these totals. Based based on 2000–2013 average black sea currently designated as North Atlantic on revenue information, all commercial bass price, or between $116,650 and right whale critical habitat from vessels directly affected by the proposed $241,631 based on 2011–2013 the November 15 through April 15. This rule may be assumed to be small average black sea bass price. The net alternative would provide slightly more entities. revenue change for all vessels combined increases in overall revenues to Because all entities expected to be would be between $43,541 and $46,367 commercial vessels than the preferred directly affected by this proposed rule based on 2000–2013 average price for alternative, but it would also pose the are assumed to be small entities, NMFS black sea bass, or between $43,889 and highest threat of right whale has determined that this proposed rule $46,553 based on 2010–2013 average entanglement with pot buoy lines. would affect a substantial number of price for black sea bass. Assuming that The third alternative would apply the small entities. However, the issue of revenue increases for users of pot gear black sea bass pot closure from disproportionate effects on small versus would be equally distributed among the approximately Ponce Inlet, Florida, to large entities does not arise in the 32 endorsement holders, revenues per Cape Hatteras, North Carolina, annually present case. pot endorsement holder would increase from November 1 through April 30. The proposed rule would modify the annually between $3,561 and $5,783, or Relative to the preferred alternative, this November 1 through April 30 between $5,113 and $8,136. However, alternative would result in higher prohibition on the use of black sea bass revenue per vessel for the 215 users of overall revenue increases but lower pot gear in the South Atlantic by non-pot gear would decrease between protection to right whales from getting allowing black sea bass pot fishing at $318 and $658, or between $543 and entangled with pot buoy lines. depths greater than approximately 25 m $1,124. For vessels using pot gear, the The fourth alternative would apply from November 1 through April 30 from expected revenue increases would be the black sea bass pot closure from approximately Cape Canaveral, Florida, approximately 9 to 21 percent of their approximately Cape Canaveral, Florida, to the Georgia/South Carolina border; at average annual revenue of $38,715 per to Cape Hatteras, North Carolina,
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annually from November 1 through higher overall revenue increases but fishing for black sea bass using pots but April 30. Although this alternative would afford a much reduced protection it would not meet the need for the would provide increased protection to to right whales from entanglement with action. The second alternative, with two right whales from entanglement with pot buoy lines. sub-alternatives, would impose pot buoy lines, it would result in The ninth alternative would apply the requirements in addition to those smaller overall revenue increases than black sea bass pot closure from required under the current ALWTRP for the preferred alternative. approximately Daytona Beach, Florida, buoy lines from November 1 through The fifth alternative would apply the to Cape Hatteras, North Carolina, April 30 in Federal waters in the South black sea bass pot closure from annually from November 1 through Atlantic. The first sub-alternative would approximately Daytona Beach, Florida, April 15; or annually from November 1 require that the breaking strength for to Cape Hatteras, North Carolina, through December 15 and February 15 buoy lines not exceed 2,200 lb (997 kg) annually from November 1 through through April 30 for the area off North and the second sub-alternative would April 30. Relative to the preferred Carolina and South Carolina, and from require that the breaking strength for alternative, this alternative would November 15 through April 15 for the buoy lines not exceed 1,200 lb (544 kg). provide slightly more increases in area off Georgia and Florida. Relative to The first sub-alternative is currently overall revenues to commercial vessels the preferred alternative, this alternative required under the ALWTRP in Federal but would provide less protection to and its sub-alternatives would result in waters off South Carolina, Georgia, and right whales from entanglement with higher overall revenue increases but Florida, and would affect only about 17 pot buoy lines. would provide much reduced protection pot endorsement holders in North The sixth alternative would apply the to right whales from entanglement with Carolina. The estimated cost to each of black sea bass pot closure from pot buoy lines. these 17 fishermen is a maximum of approximately Sebastian Inlet, Florida, The tenth alternative would apply the $716. The second sub-alternative would to Cape Hatteras, North Carolina, black sea bass pot closure from impose the same cost per fisherman of annually from November 1 through approximately the Georgia/South $716 but would affect all 32 pot April 30. Although this alternative Carolina border, to Cape Hatteras, North endorsement holders. The third would provide the second greatest Carolina, annually from November 1 alternative would require that the protection in comparison with the through December 15, with the breaking strength of the weak links of alternatives in Regulatory Amendment following provision: From February 15 the buoy lines must not exceed 400 lb 16 to right whales from entanglement through April 30, the black sea bass pot (181 kg) for black sea bass pots in the with pot buoy lines, it would result in closure applies to waters inshore of South Atlantic EEZ. This alternative is lower overall revenue increases than the points 1–28 listed in Table 2.1.9 of a decrease from the current requirement preferred alternative. Regulatory Amendment 16, of 600 lb (272 kg) breaking strength of The seventh alternative would apply approximately the Georgia/South the weak links under the ALWTRP, and the black sea bass pot closure from Carolina border, to Cape Hatteras, North is estimated to cost each of the 32 pot approximately the Altamaha River, Carolina; from December 16 through endorsement holders $65. Relative to Georgia, to Cape Hatteras, North February 14, there would be no closure the preferred alternative, all these Carolina, annually from November 1 off of the Carolinas; from November 15 alternatives, except the no action through December 15 and March 15 through April 15, the black sea bass pot alternative, would impose higher costs through April 30; or annually from closure applies to waters inshore of upon fishermen using black sea bass November 1 through December 15 and points 20–28 listed in Table 2.1.8 of pots. March 15 through April 30 for the area Regulatory Amendment 16, off North Carolina and South Carolina, approximately the Georgia/South This proposed rule contains and from November 15 through April 15 Carolina border, to approximately collection-of-information requirements for the area off Georgia and Florida; or Daytona Beach, Florida. Relative to the subject to the Paperwork Reduction Act annually from February 15 through preferred alternative, this alternative (PRA). NMFS is proposing to revise the April 30 for the area off North Carolina would result in higher overall revenue collection-of-information requirement and South Carolina, and from November increases but would provide much under OMB Control Number 0648–0358. 15 through April 15 for the area off reduced protection to right whales from NMFS estimates the proposed Georgia and Florida. Relative to the entanglement with pot buoy lines. requirement for sea bass pot gear preferred alternative, this alternative The eleventh alternative would apply marking would result in an additional and its sub-alternatives would result in the black sea bass pot closure from annual cost of up to $90 per sea bass pot relatively higher overall revenue approximately Cape Canaveral, Florida, endorsement holder and require up to increases but would provide much to Cape Hatteras, North Carolina, an additional 3.5 hours per response per reduced protection to right whales from annually from November 1 through year. Based upon feedback from entanglement with sea bass pot buoy April 30. Relative to the preferred fishermen, the cost and time burden for lines. alternative, this alternative would result the proposed marking requirement may The eighth alternative would apply in higher overall revenue increases but be slightly lower in subsequent years the black sea bass pot closure from would provide slightly reduced depending on the marking method used. approximately Daytona Beach, Florida, protection to right whales from However, NMFS estimates the to Cape Hatteras, North Carolina, entanglement with pot buoy lines. requirement to endorsement holders annually from November 1 through Four alternatives, including the would result in the same for cost and April 15; or annually from November 1 preferred alternative, were considered time burden for each subsequent year, through December 15 and February 15 in addition to the existing ALWTRP because different materials used to mark through April 30 for the area off North buoy line/weak link gear requirements sea bass pot gear are available and the Carolina and South Carolina, and from and buoy line rope marking for black longevity of the markings vary November 15 through April 15 for the sea bass pots in the South Atlantic. The depending on factors such as the length area off Georgia and Florida. Relative to first alternative, the no action of the fishing season and how often the the preferred alternative, this alternative alternative, would not impose any gear is used. This estimate of the public and its sub-alternatives would result in additional cost on fishermen when reporting burden includes the time for
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reviewing instructions, gathering and time period described in (b)(6)(i) and Point North lat. West long. maintaining the data needed, and (b)(6)(ii) of this section, respectively. completing and reviewing the During the applicable closure, no person 32 29°45′ 81°01′ collection-of-information. NMFS will may harvest or possess black sea bass in 33 29°31′ 80°58′ ° ′ ° ′ submit this revision request to OMB for or from the closed area within the South 34 29 13 80 52 35 29°13′ State/EEZ approval. Atlantic EEZ either with sea bass pots boundary. NMFS seeks public comment or from a vessel with sea bass pots on regarding: board, except that a vessel with a valid (ii) From December 1 through March • Whether this proposed collection-of- commercial permit for snapper-grouper 31, no person may harvest or possess information is necessary for the proper with a sea bass pot endorsement that is black sea bass in or from the closed area performance of the functions of the agency, in transit and with black sea bass pot within the South Atlantic EEZ either including whether the gear marking will have gear appropriately stowed as described with sea bass pots or from a vessel with practical utility; in paragraph (b)(6)(iii) of this section sea bass pots on board in the South • The accuracy of the burden estimate; may possess black sea bass. In addition, • The instructions for how to mark the sea Atlantic EEZ inshore of the rhumb lines sea bass pots must be removed from the connecting, in order, the following bass pot gear; and water in the applicable closed area • Ways to minimize the burden of the points: collection-of-information, including through within the South Atlantic EEZ before the use of automated collection techniques or the applicable time period, and may not Point North lat. West long. other forms of information technology. be on board a vessel in the closed area within the South Atlantic EEZ during 1 35°15′ State/EEZ Send comments regarding the burden the applicable closure, except for such boundary/ estimate or any other aspect of the 2 35°15′ 75°08′ sea bass pot gear appropriately stowed ° ′ ° ′ collection-of-information requirement, on board a vessel in transit through the 3 34 58 75 41 4 34°49′ 75°50′ including suggestions for reducing the closed area. See paragraph (b)(6)(iii) of burden, to NMFS or to OMB (see 5 34°47′ 76°05′ this section for black sea bass pot transit ° ′ ° ′ ADDRESSES). 6 34 31 76 18 and gear stowage requirements through 7 34°20′ 76°13′ Notwithstanding any other provision the closed areas. 8 34°12′ 77°00′ of law, no person is required to respond (i) From November 1 through 9 33°43′ 77°30′ to, nor shall a person be subject to a November 30 and from April 1 through 10 33°21′ 77°21′ penalty for failure to comply with, a 11 33°18′ 77°41′ April 30, no person may harvest or ° ′ ° ′ collection-of-information subject to the possess black sea bass in or from the 12 33 22 77 56 requirements of the PRA, unless that 13 33°12′ 78°20′ closed area within the South Atlantic ° ′ ° ′ collection-of-information displays a 14 33 05 78 22 EEZ either with sea bass pots or from a 15 33°01′ 78°38′ currently valid OMB control number. vessel with sea bass pots on board in the 16 32°40′ 79°01′ All currently approved collections of South Atlantic EEZ inshore of the 17 32°36′ 79°18′ information may be viewed at: http:// 18 32°19′ 79°22′ _ rhumb lines connecting, in order, the www.cio.noaa.gov/services programs/ following points: 19 32°16′ 79°37′ prasubs.html. 20 32°03′ 79°48′ ° ′ ° ′ Point North lat. West long. 21 31 39 80 27 List of Subjects in 50 CFR Part 622 22 30°58′ 80°47′ ° ′ ° ′ Annual catch limits, Black Sea Bass, 1 35°15′ State/EEZ 23 30 13 81 01 24 29°32′ 80°39′ Fisheries, Fishing, South Atlantic. boundary. ° ′ ° ′ 2 35°15′ 75°09′ 25 29 22 80 44 Dated: August 3, 2016. ° ′ ° ′ 3 35°06′ 75°22′ 26 28 50 80 22 Samuel D. Rauch III, ° ′ ° ′ 27 28°21′ 80°18′ 4 35 06 75 39 ° ′ Deputy Assistant Administrator for 5 35°01′ 75°47′ 28 28 21 State/EEZ Regulatory Programs, National Marine 6 34°54′ 75°46′ boundary. Fisheries Service. 7 34°52′ 76°04′ 8 34°33′ 76°22′ (iii) For the purpose of paragraph For the reasons set out in the 9 34°23′ 76°18′ (b)(6) of this section, transit means non- preamble, 50 CFR part 622 is proposed 10 34°21′ 76°27′ stop progression through the area; to be amended as follows: 11 34°25′ 76°51′ fishing gear appropriately stowed means 12 34°09′ 77°19′ all black sea bass pot gear must be out PART 622—FISHERIES OF THE ° ′ ° ′ 13 33 44 77 38 of the water and on board the deck of CARIBBEAN, GULF OF MEXICO, AND ° ′ ° ′ 14 33 25 77 27 the vessel. All buoys must either be SOUTH ATLANTIC 15 33°22′ 77°40′ 16 33°28′ 77°41′ disconnected from the gear or stowed ■ 1. The authority citation for part 622 17 33°32′ 77°53′ within the sea bass pot. Disconnected continues to read as follows: 18 33°22′ 78°26′ buoys may remain on deck. 19 33°06′ 78°31′ * * * * * Authority: 16 U.S.C. 1801 et seq. 20 33°05′ 78°40′ ■ 3. In § 622.189, add paragraph (g) to ■ 2. In § 622.183, revise paragraph (b)(6) 21 33°01′ 78°43′ ° ′ ° ′ read as follows: to read as follows: 22 32 56 78 57 23 32°44′ 79°04′ § 622.189 Restrictions and requirements § 622.183 Area and seasonal closures. 24 32°42′ 79°13′ for sea bass pots. ° ′ ° ′ 25 32 34 79 23 * * * * * * * * * * 26 32°25′ 79°25′ (b) * * * 27 32°23′ 79°37′ (g) Sea bass pot buoy line marking (6) Seasonal closure of the 28 31°53′ 80°09′ requirement. In addition to the gear commercial black sea bass pot 29 31°31′ 80°33′ marking requirements specified in 50 component of the snapper-grouper 30 30°43′ 80°49′ CFR 229.32(b), from November 15 fishery. The closed area is that area and 31 30°30′ 81°01′ through April 15, each year, in the
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Southeast U.S. Restricted Area North as clearly visible when the gear is hauled board, the vessel. Each of the three described in 50 CFR 229.32(f) and from or removed from the water, including if purple bands must be a 12-inch (30.5 September 1 through May 31, each year the color of the rope is the same as, or cm) color mark. In marking or affixing in the Offshore Trap/Pot Waters Area similar, to the colored band. The purple the purple band, the line may be dyed, and the Southern Nearshore Trap/Pot band must be marked directly onto the painted, or marked with thin colored Waters Area, as described in 50 CFR line and adjacent to the buoy line whipping line, thin colored plastic, or 229.32(c)(6) and (9), respectively, the markings specified in 50 CFR 229.32(b), heat-shrink tubing, or other material. buoy line must be marked with a purple that is, at the top, middle, and bottom [FR Doc. 2016–18998 Filed 8–10–16; 8:45 am] color band. The colored band must be of each buoy line deployed by, or on BILLING CODE 3510–22–P
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Notices Federal Register Vol. 81, No. 155
Thursday, August 11, 2016
This section of the FEDERAL REGISTER the collection of information that such processes for maintenance and contains documents other than rules or persons are not required to respond to improvements in program integrity. proposed rules that are applicable to the the collection of information unless it Description of Respondents: public. Notices of hearings and investigations, displays a currently valid OMB control Individuals or households, Businesses committee meetings, agency decisions and number. or other for-profits, Not-for profit rulings, delegations of authority, filing of institutions, and State, Local, or Tribal petitions and applications and agency Food and Nutrition Service statements of organization and functions are Government. examples of documents appearing in this Title: Erroneous Payments in Child Number of Respondents: 8,942. section. Care Centers Study (EPICCS). Frequency of Responses: Reporting: OMB Control Number: 0584–NEW. Annually. Summary of Collection: The Child Total Burden Hours: 13,906. DEPARTMENT OF AGRICULTURE and Adult Care Food Program (CACFP), Ruth Brown, administered by the Food and Nutrition Food and Nutrition Service Departmental Information Collection Service (FNS), is authorized at Section Clearance Officer. 17 of the National School Lunch Act (42 Submission for OMB Review; [FR Doc. 2016–19088 Filed 8–10–16; 8:45 am] U.S.C. 1766). The CACFP supports day Comment Request BILLING CODE 3410–30–P care centers through reimbursements of August 8, 2016. costs for serving nutritious meals and snacks to eligible children and adults. The Department of Agriculture has COMMISSION ON CIVIL RIGHTS submitted the following information The Improper Payments Information Act collection requirement(s) to OMB for (IPIA) of 2002 (Pub. L. 107–300) set Notice of Public Meetings of the review and clearance under the annual requirements for Federal Virginia Advisory Committee to Plan Paperwork Reduction Act of 1995, programs, such as CACFP, to report Civil Rights Project Public Law 104–13. Comments are estimates of improper payments in an requested regarding (1) whether the effort to improve program integrity. AGENCY: Commission on Civil Rights. collection of information is necessary Further guidance was provided in a ACTION: Announcement of monthly for the proper performance of the 2009 Executive Order and by the planning meetings. functions of the agency, including Improper Payments Elimination and whether the information will have Recovery Act (IPERA) of 2010 (Pub. L. SUMMARY: Notice is hereby given, practical utility; (2) the accuracy of the 111–204) and the Improper Payments pursuant to the provisions of the rules agency’s estimate of burden including Elimination and Recovery Improvement and regulations of the U.S. Commission the validity of the methodology and Act (IPERIA) of 2012 (Pub. L. 112–248), on Civil Rights (Commission), and the assumptions used; (3) ways to enhance which amended and expanded IPIA Federal Advisory Committee Act the quality, utility and clarity of the requirements. In order to comply with (FACA), that planning meetings of the information to be collected; and (4) reporting requirements concerning Virginia Advisory Committee to the ways to minimize the burden of the improper payments, FNS is conducting Commission will convene by conference collection of information on those who the Erroneous Payments in Child Care call at 12:00 p.m. (ET) on each of the are to respond, including through the Centers Study (EPICCS). This study will following Thursdays: September 8, use of appropriate automated, focus on CACFP operations in October 6, November 3 and December 1, electronic, mechanical, or other participating child care centers and 2016. The purpose of each planning technological collection techniques or their sponsoring organizations. This meeting is to discuss project planning other forms of information technology. study is necessary for FNS’s annual and eventually select topic(s) for the Comments regarding this information compliance with IPERA in the child Committee’s civil rights review. collection received by September 12, care center component of CACFP. DATES: The meetings will be held at 2016 will be considered. Written Need and Use of the Information: The 12:00 p.m. EST on Thursday, September comments should be addressed to: Desk data collected from EPICCS will be used 8, 2016; Thursday, October 6, 2016; Officer for Agriculture, Office of to produce national estimates of Thursday, November 3, 2016; and Information and Regulatory Affairs, improper or erroneous payments in the Thursday, December 1, 2016. Office of Management and Budget child care center component of the ADDRESSES: Public Call Information: (OMB), [email protected] CACFP resulting from certification, Dial 1–888–539–3613; Conference ID or fax (202) 395–5806 and to aggregation, and meal claiming errors; to 5914757. Departmental Clearance Office, USDA, develop models for calculating annual, Interested members of the public may OCIO, Mail Stop 7602, Washington, DC national estimates for all three types of listen to the discussion by calling the 20250–7602. Copies of the errors; and to describe methodologies following toll-free conference call-in submission(s) may be obtained by for generating State-level erroneous number: 1–888–539–3613 and calling (202) 720–8958. payment estimates in a White Paper. conference call ID: 5914757. Please be An agency may not conduct or FNS will also use the data to fulfill advised that before placing them into sponsor a collection of information reporting requirements under IPERA to the conference call, the conference call unless the collection of information annually measure and report erroneous operator will ask callers to provide their displays a currently valid OMB control payments in the CACFP, to identify the names, their organizational affiliations number and the agency informs sources of erroneous payments, and to (if any), and email addresses (so that potential persons who are to respond to inform its policy-making and regulatory callers may be notified of future
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meetings). Callers can expect to incur Dated: August 5, 2016. notified the International Trade charges for calls they initiate over David Mussatt, Commission, in writing, that we wireless lines, and the Commission will Chief, Regional Programs Unit. intended to issue a final determination 4 not refund any incurred charges. Callers [FR Doc. 2016–19056 Filed 8–10–16; 8:45 am] revoking this antidumping duty order. will incur no charge for calls they BILLING CODE 6335–01–P Scope of the Order initiate over land-line connections to the toll-free conference call-in number. The product covered by the order is Persons with hearing impairments DEPARTMENT OF COMMERCE PTFE resin, filled or unfilled. The order may also follow the discussion by first also covers PTFE wet raw polymer calling the Federal Relay Service at 1– International Trade Administration exported from Italy to the United States. 800–977–8339 and providing the [A–475–703] See Granular Polytetrafluoroethylene operator with the toll-free conference Resin From Italy; Final Affirmative call-in number: 1–888–539–3613 and Granular Polytetrafluorethylene Resin Determination of Circumvention of conference call ID: 5914757. From Italy: Final Results of Sunset Antidumping Duty Order, 58 FR 26100 Members of the public are invited to Review and Revocation of (April 30, 1993). The order excludes make statements during the open Antidumping Duty Order PTFE dispersions in water and fine comment period of the meeting or powders. During the period covered by submit written comments. The AGENCY: Enforcement and Compliance, this review, such merchandise was comments must be received in the International Trade Administration, classified under item number regional office approximately 30 days Department of Commerce. 3904.61.00 of the Harmonized Tariff after each scheduled meeting. Written SUMMARY: On June 1, 2016, the Schedule of the United States (HTSUS). comments may be mailed to the Eastern Department of Commerce (the We are providing this HTSUS number Regional Office, U.S. Commission on Department) initiated a sunset review of for convenience and customs purposes Civil Rights, 1331 Pennsylvania the antidumping duty order on granular only. The written description of the Avenue, Suite 1150, Washington, DC polytetrafluorethylene (PTFE) resin scope remains dispositive. 20425, faxed to (202) 376–7548, or from Italy. Because the domestic emailed to Evelyn Bohor at ero@ interested parties did not participate in Revocation usccr.gov. Persons who desire this sunset review, the Department is Pursuant to section 751(c)(3)(A) of the additional information may contact the revoking this antidumping duty order. Tariff Act of 1930, as amended (the Act) Eastern Regional Office at (202) 376– DATES: Effective [July 18, 2016]. and 19 CFR 351.218(d)(1)(iii)(B)(3), if no 7533. FOR FURTHER INFORMATION CONTACT: domestic interested party files a notice Records and documents discussed Toby Vandall, AD/CVD Operations, of intent to participate, the Department during the meeting will be available for Enforcement and Compliance, shall, within 90 days after the initiation public viewing as they become available International Trade Administration, of the review, issue a final at http://facadatabase.gov/committee/ U.S. Department of Commerce, 14th determination revoking the order. meetings.aspx?cid=279; click the Street and Constitution Avenue NW., Because no domestic interested party ‘‘Meeting Details’’ and ‘‘Documents’’ Washington, DC 20230; telephone: (202) filed a notice of intent to participate, the links. Records generated from this 482–1664. Department finds that no domestic meeting may also be inspected and SUPPLEMENTARY INFORMATION: interested party is participating in this reproduced at the Eastern Regional sunset review. Therefore, we are Office, as they become available, both Background revoking the antidumping duty order on before and after the meetings. Persons On August 30, 1988, the Department PTFE from Italy. interested in the work of this advisory issued the antidumping duty order on committee are advised to go to the Effective Date of Revocation granular PTFE resin from Italy.1 On July Commission’s Web site, www.usccr.gov, 18, 2011, at the conclusion of the most or to contact the Eastern Regional Office Pursuant to 19 CFR 351.222(i)(2)(i), recently completed sunset review, the at the above phone numbers, email or the effective date of revocation is July Department published a notice of street address. 18, 2016, the fifth anniversary of the continuation of the antidumping duty Public Call-In Information: effective date of publication in the order on PTFE resin from Italy.2 On Conference call-in number: 1–888–539– Federal Register of the previous June 1, 2016, the Department initiated 5 3613 and conference call ID: 5914757. continuation of this order. Pursuant to the current sunset review of this order.3 TDD: Dial Federal Relay Service at 1– section 751(c)(3)(A) of the Act and 19 We did not receive a notice of intent to 800–977–8339 and give the operator the CFR 351.222(i)(2)(i), the Department participate from domestic interested above toll-free conference call-in intends to issue instructions to U.S. parties for this sunset review by the number and conference call ID. Customs and Border Protection, 15 days applicable deadline. As a result, in after publication of this notice, to FOR FURTHER INFORMATION CONTACT: Ivy accordance with 19 CFR terminate the suspension of liquidation L. Davis, at [email protected] or by phone 351.218(d)(1)(iii)(A), the Department of the merchandise subject to this order at 202–376–7533 determined that no domestic interested entered, or withdrawn from warehouse, SUPPLEMENTARY INFORMATION: party intends to participate in this for consumption on or after July 18, Agenda sunset review, and on June 20, 2016, we 2016. Entries of subject merchandise prior to the effective date of revocation I. Welcome and Introductions 1 See Antidumping Duty Order: Granular will continue to be subject to —Rollcall Polytetrafluoroethylene Resin from Italy, 53 FR suspension of liquidation and Planning Meeting 33163 (August 30, 1988). —Discuss Project Planning 2 See Granular Polytetrafluoroethylene Resin From Italy: Continuation of Antidumping Duty 4 See 19 CFR 351.218(d)(l)(iii)(B)(2). See also II. Other Business Order, 76 FR 42114 (July 18, 2011) (Continuation). letter from the Department, ‘‘Sunset Reviews III. Open Comment 3 See Initiation of Five-Year (‘‘Sunset’’) Review, 81 Initiated on June 1, 2016’’ (June 20, 2016). IV. Adjournment FR 34974 (June 1, 2016). 5 See Continuation.
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antidumping duty cash deposit The Department, therefore, notified pursuant to section 777(i)(1) of the Act requirements. the ITC of the magnitude of the margins and 19 CFR 351.218(f)(4). The final results of this five-year likely to prevail should the AD Order be Dated: August 5, 2016. (sunset) review and notice is published revoked. Ronald K. Lorentzen, in accordance with sections 751(c) and On July 28, 2016, the ITC published 777(i)(l) of the Act. Acting Assistant Secretary for Enforcement notice of its determination, pursuant to and Compliance. section 751(c) of the Act, that revocation Dated: August 5, 2016. [FR Doc. 2016–19143 Filed 8–10–16; 8:45 am] of the AD Order on POS Cooking Ware Ronald K. Lorentzen BILLING CODE 3510–DS–P Acting Assistant Secretary for Enforcement from the PRC would likely lead to a and Compliance. continuation or recurrence of material [FR Doc. 2016–19155 Filed 8–10–16; 8:45 am] injury to an industry in the United DEPARTMENT OF COMMERCE BILLING CODE 3510–DS–P States within a reasonably foreseeable time.3 International Trade Administration Scope of the Orders [A–570–970] DEPARTMENT OF COMMERCE The merchandise covered by the AD Multilayered Wood Flooring From the International Trade Administration Order is porcelain-on-steel cooking People’s Republic of China: Correction ware, including tea kettles, which do [A–570–506] to the Final Results of Antidumping not have self-contained electric heating Duty Administrative Review Porcelain-on-Steel Cooking Ware From elements. All of the foregoing are the People’s Republic of China: constructed of steel and are enameled or AGENCY: Enforcement and Compliance, Continuation of Antidumping Duty glazed with vitreous glasses. The International Trade Administration, Order merchandise is currently classifiable Department of Commerce. under the Harmonized Tariff Schedule FOR FURTHER INFORMATION CONTACT: Lilit AGENCY: Enforcement and Compliance, of the United States, (‘‘HTSUS’’) Astvatsatrian or William Horn, AD/CVD International Trade Administration, subheading 7323.94.00.4 Although the Operations, Office IV, Enforcement and Department of Commerce. HTSUS subheading is provided for Compliance, International Trade SUMMARY: As a result of the convenience and customs purposes, the Administration, Department of determinations by the Department of written description of the merchandise Commerce, 14th Street and Constitution Commerce (‘‘the Department’’) and the is dispositive. Avenue NW., Washington, DC 20230; International Trade Commission (‘‘ITC’’) telephone: (202) 482–6412 or (202) 482– that revocation of the antidumping duty Continuation of the Order 2615, respectively. (‘‘AD’’) order on Porcelain-on-Steel As a result of the determinations by SUPPLEMENTARY INFORMATION: On July Cooking Ware (‘‘POS Cooking Ware’’) the Department and the ITC that 19, 2016, the Department of Commerce from the People’s Republic of China revocation of the AD Order would likely (‘‘the Department’’) published the final (‘‘PRC’’) would likely lead to a lead to a continuation or recurrence of results of the 2013–2014 administrative continuation or recurrence of dumping dumping and material injury to an review of the antidumping duty order and material injury to an industry in the industry in the United States, pursuant on multilayered wood flooring from the United States, the Department is to section 751(d)(2) of the Act and 19 People’s Republic of China (‘‘PRC’’).1 publishing a notice of continuation of CFR 351.218(a), the Department hereby The period of review (‘‘POR’’) is the antidumping duty order. orders the continuation of the AD Order December 1, 2013, through November DATES: Effective August 11, 2016. on POS Cooking Ware from the PRC. 30, 2014. The Department is issuing this FOR FURTHER INFORMATION CONTACT: U.S. Customs and Border Protection will notice to correct an inadvertent error in Andrew Devine, AD/CVD Operations, continue to collect AD cash deposits at the Final Results. Specifically, the Enforcement and Compliance, the rates in effect at the time of entry for Department inadvertently omitted International Trade Administration, all imports of subject merchandise. identifying several companies that are U.S. Department of Commerce, 14th The effective date of the continuation part of the PRC-wide entity. The Street and Constitution Avenue NW., of the Order will be the date of Department finds that 16 companies Washington, DC 20230; telephone: (202) publication in the Federal Register of subject to this review did not establish 482–0238. this notice of continuation. Pursuant to eligibility for a separate rate. As such, SUPPLEMENTARY INFORMATION: section 751(c)(2) of the Act, the we determine they are part of the PRC- Department intends to initiate the next wide entity. The following companies Background five-year review of the Order not later were named in the Initiation of On February 2, 2016, the Department than 30 days prior to the fifth Antidumping and Countervailing Duty published the notice of the initiation of anniversary of the effective date of Administrative Reviews, 80 FR 6041 the fourth five-year (‘‘sunset’’) review of continuation. (February 4, 2014), but did not submit the Antidumping Order (‘‘AD Order’’) This five-year sunset review and this a certification of no shipment, separate on POS Cooking Ware from the PRC, notice are in accordance with section rate application, or separate rate pursuant to section 751(c) of the Tariff 751(c) of the Act and published certification; therefore they are part of Act of 1930, as amended (‘‘the Act’’).1 the PRC-wide entity: Anhui Suzhou As a result of its review, the Department Expedited Sunset Review of the Antidumping Duty Dongda Wood Co., Ltd.; Baiying determined that revocation of the AD Order, 81 FR 36870 (June 8, 2016). Furniture Manufacturer Co., Ltd.; Cheng Order would likely lead to a 3 See Porcelain-on-Steel Cooking Ware from Hang Wood Co., Ltd.; Dalian Jiuyuan 2 China: Investigation No. 731–TA–298 (Fourth continuation or recurrence of dumping. Review), USITC Publication 4625 (July, 2016); see Wood Industry Co., Ltd.; Fu Lik Timber also Porcelain-on-Steel Cooking Ware from China; 1 See Initiation of Five-Year (‘‘Sunset’’) Review, 80 Determination, 81 FR 49688 (July 28, 2016). 1 See Multilayered Wood Flooring from the FR 45945 (August 3, 2015). 4 See Porcelain-on-Steel Cooking Ware from the People’s Republic of China: Final Results of 2 See Porcelain-on-Steel Cooking Ware From the People’s Republic of China, 76 FR 7534 (February Antidumping Duty Administrative Review; 2013– People’s Republic of China: Final Results of 10, 2011). 2014, 81 FR 46899 (July 19, 2016) (‘‘Final Results’’).
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(HK) Co., Ltd.; Guangzhou Homebon Street and Constitution Avenue NW., conduct respondent selection under Timber Manufacturing Co., Ltd.; HaiLin Washington, DC 20230, telephone: (202) section 777A(c)(2) of the Act: XinCheng Wooden Products, Ltd.; 482–4735. In general, the Department has found Hangzhou Dazhuang Floor Co., Ltd (dba SUPPLEMENTARY INFORMATION: that determinations concerning whether Dasso Industrial Group Co., Ltd); Linyi particular companies should be Anying Wood Co., Ltd.; Qingdao Barry Background ‘‘collapsed’’ (i.e., treated as a single Flooring Co., Ltd. ; Shanghai Anxin The Department has received timely entity for purposes of calculating (Weiguang) Timber Co., Ltd.; Vicwood requests, in accordance with 19 CFR antidumping duty rates) require a Industry (Suzhou) Co., Ltd.; Zhejiang 351.213(b), for administrative reviews of substantial amount of detailed AnJi XinFeng Bamboo & Wood Industry various antidumping and countervailing information and analysis, which often Co., Ltd.; Zhejiang Desheng Wood duty orders and findings with June require follow-up questions and Industry Co., Ltd.; Zhejiang Haoyun anniversary dates. analysis. Accordingly, the Department Wooden Co., Ltd.; and Zhejiang Shiyou All deadlines for the submission of will not conduct collapsing analyses at Timber Co., Ltd. Because no party various types of information, the respondent selection phase of this requested a review of the PRC-wide certifications, or comments or actions by review and will not collapse companies entity and the Department no longer the Department discussed below refer to at the respondent selection phase unless considers the PRC-wide entity as an the number of calendar days from the there has been a determination to exporter conditionally subject to applicable starting time. collapse certain companies in a administrative reviews,2 we did not previous segment of this antidumping conduct a review of the PRC-wide Notice of No Sales proceeding (i.e., investigation, entity. Thus, the rate for the PRC-wide If a producer or exporter named in administrative review, new shipper entity is not subject to change as a result this notice of initiation had no exports, review or changed circumstances of this review. sales, or entries during the period of review). For any company subject to this This correction to the final results of review (‘‘POR’’), it must notify the review, if the Department determined, administrative review is issued and Department within 30 days of or continued to treat, that company as published in accordance with sections publication of this notice in the Federal collapsed with others, the Department 751(h) and 777(i)(2)(i) of the Tariff Act Register. All submissions must be filed will assume that such companies of 1930, as amended. electronically at http://access.trade.gov continue to operate in the same manner Dated: August 5, 2016. in accordance with 19 CFR 351.303.1 and will collapse them for respondent Ronald K. Lorentzen, Such submissions are subject to selection purposes. Otherwise, the Department will not collapse companies Acting Assistant Secretary for Enforcement verification in accordance with section and Compliance. 782(i) of the Tariff Act of 1930, as for purposes of respondent selection. Parties are requested to (a) identify [FR Doc. 2016–19133 Filed 8–10–16; 8:45 am] amended (‘‘the Act’’). Further, in which companies subject to review BILLING CODE 3510–DS–P accordance with 19 CFR 351.303(f)(1)(i), a copy must be served on every party on previously were collapsed, and (b) the Department’s service list. provide a citation to the proceeding in DEPARTMENT OF COMMERCE which they were collapsed. Further, if Respondent Selection companies are requested to complete International Trade Administration In the event the Department limits the the Quantity and Value (‘‘Q&V’’) number of respondents for individual Questionnaire for purposes of Initiation of Antidumping and examination for administrative reviews respondent selection, in general each Countervailing Duty Administrative initiated pursuant to requests made for company must report volume and value Reviews the orders identified below, the data separately for itself. Parties should not include data for any other party, AGENCY: Department intends to select Enforcement and Compliance, even if they believe they should be International Trade Administration, respondents based on U.S. Customs and Border Protection (‘‘CBP’’) data for U.S. treated as a single entity with that other Department of Commerce. party. If a company was collapsed with SUMMARY: The Department of Commerce imports during the period of review. We intend to place the CBP data on the another company or companies in the (‘‘the Department’’) has received most recently completed segment of this record within five days of publication of requests to conduct administrative proceeding where the Department the initiation notice and to make our reviews of various antidumping and considered collapsing that entity, decision regarding respondent selection countervailing duty orders and findings complete Q&V data for that collapsed within 30 days of publication of the with June anniversary dates. In entity must be submitted. accordance with the Department’s initiation Federal Register notice. regulations, we are initiating those Comments regarding the CBP data and Deadline for Withdrawal of Request for administrative reviews. respondent selection should be Administrative Review DATES: Effective August 11, 2016. submitted seven days after the Pursuant to 19 CFR 351.213(d)(1), a FOR FURTHER INFORMATION CONTACT: placement of the CBP data on the record party that has requested a review may Brenda E. Waters, Office of AD/CVD of this review. Parties wishing to submit withdraw that request within 90 days of Operations, Customs Liaison Unit, rebuttal comments should submit those the date of publication of the notice of Enforcement and Compliance, comments five days after the deadline initiation of the requested review. The International Trade Administration, for the initial comments. regulation provides that the Department U.S. Department of Commerce, 14th In the event the Department decides may extend this time if it is reasonable it is necessary to limit individual to do so. In order to provide parties 2 See Antidumping Proceedings: Announcement examination of respondents and additional certainty with respect to of Change in Department Practice for Respondent when the Department will exercise its Selection in Antidumping Duty Proceedings and 1 See Antidumping and Countervailing Duty Conditional Review of the Nonmarket Economy Proceedings: Electronic Filing Procedures; discretion to extend this 90-day Entity in NME Antidumping Duty Proceedings, 78 Administrative Protective Order Procedures, 76 FR deadline, interested parties are advised FR 65963, 65969–70 (November 4, 2013). 39263 (July 6, 2011). that the Department does not intend to
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extend the 90-day deadline unless the All firms listed below that wish to limited to, changes to corporate requestor demonstrates that an qualify for separate rate status in the structure, acquisitions of new extraordinary circumstance has administrative reviews involving NME companies or facilities, or changes to prevented it from submitting a timely countries must complete, as their official company name,3 should withdrawal request. Determinations by appropriate, either a separate rate timely file a Separate Rate Application the Department to extend the 90-day application or certification, as described to demonstrate eligibility for a separate deadline will be made on a case-by-case below. For these administrative reviews, rate in this proceeding. The Separate basis. in order to demonstrate separate rate Rate Status Application will be Separate Rates eligibility, the Department requires available on the Department’s Web site entities for whom a review was at http://enforcement.trade.gov/nme/ In proceedings involving non-market requested, that were assigned a separate nme-sep-rate.html on the date of economy (‘‘NME’’) countries, the rate in the most recent segment of this publication of this Federal Register Department begins with a rebuttable proceeding in which they participated, notice. In responding to the Separate presumption that all companies within to certify that they continue to meet the Rate Status Application, refer to the the country are subject to government criteria for obtaining a separate rate. The instructions contained in the control and, thus, should be assigned a Separate Rate Certification form will be application. Separate Rate Status single antidumping duty deposit rate. It available on the Department’s Web site Applications are due to the Department is the Department’s policy to assign all at http://enforcement.trade.gov/nme/ no later than 30 calendar days of exporters of merchandise subject to an nme-sep-rate.html on the date of publication of this Federal Register administrative review in an NME publication of this Federal Register notice. The deadline and requirement country this single rate unless an notice. In responding to the for submitting a Separate Rate Status exporter can demonstrate that it is certification, please follow the Application applies equally to NME- sufficiently independent so as to be ‘‘Instructions for Filing the owned firms, wholly foreign-owned entitled to a separate rate. firms, and foreign sellers that purchase To establish whether a firm is Certification’’ in the Separate Rate and export subject merchandise to the sufficiently independent from Certification. Separate Rate United States. government control of its export Certifications are due to the Department activities to be entitled to a separate no later than 30 calendar days after For exporters and producers who rate, the Department analyzes each publication of this Federal Register submit a separate-rate status application entity exporting the subject notice. The deadline and requirement or certification and subsequently are merchandise under a test arising from for submitting a Certification applies selected as mandatory respondents, the Final Determination of Sales at Less equally to NME-owned firms, wholly these exporters and producers will no Than Fair Value: Sparklers from the foreign-owned firms, and foreign sellers longer be eligible for separate rate status People’s Republic of China, 56 FR 20588 who purchase and export subject unless they respond to all parts of the (May 6, 1991), as amplified by Final merchandise to the United States. questionnaire as mandatory Determination of Sales at Less Than Entities that currently do not have a respondents. Fair Value: Silicon Carbide from the separate rate from a completed segment Initiation of Reviews People’s Republic of China, 59 FR 22585 of the proceeding 2 should timely file a (May 2, 1994). In accordance with the Separate Rate Application to In accordance with 19 CFR separate rates criteria, the Department demonstrate eligibility for a separate 351.221(c)(1)(i), we are initiating assigns separate rates to companies in rate in this proceeding. In addition, administrative reviews of the following NME cases only if respondents can companies that received a separate rate antidumping and countervailing duty demonstrate the absence of both de jure in a completed segment of the orders and findings. We intend to issue and de facto government control over proceeding that have subsequently the final results of these reviews not export activities. made changes, including, but not later than June 30, 2017.
Period to be reviewed
Antidumping Duty Proceedings MEXICO: Prestressed Concrete Steel Rail Tie Wire, A–201–843 ...... 6/1/15–5/31/16 Aceros Camaesa, S.A. de C.V ...... THE PEOPLE’S REPUBLIC OF CHINA: Aluminum Extrusions,4 A–570–967 ...... 5/1/15–4/30/16 The PRC-Wide Entity ...... THE PEOPLE’S REPUBLIC OF CHINA: Chlorinated Isocyanurates, A–570–898 ...... 6/1/15–5/31/16 Hebei Jiheng Chemical Co. Ltd ...... Heze Huayi Chemical Co. Ltd ...... Juancheng Kangtai Chemical Co. Ltd ...... THE PEOPLE’S REPUBLIC OF CHINA: High Pressure Steel Cylinders, A–570–977 ...... 6/1/15–5/31/16 Beijing Tianhai Industry Co., Ltd ...... THE PEOPLE’S REPUBLIC OF CHINA: Polyester Staple Fiber, A–570–905 ...... 6/1/15–5/31/16 Cixi Sansheng Chemical Fiber Co ...... Hangzhou Huachuang Co., Ltd. also known as Huachuang Industrial Co., Ltd ...... THE PEOPLE’S REPUBLIC OF CHINA: Tapered Roller Bearings, A–570–601 ...... 6/1/15–5/31/16 Changshan Peer Bearing Co., Ltd ......
2 Such entities include entities that have not shipper review, etc.) and entities that lost their 3 Only changes to the official company name, participated in the proceeding, entities that were separate rate in the most recently completed rather than trade names, need to be addressed via preliminarily granted a separate rate in any segment of the proceeding in which they a Separate Rate Application. Information regarding currently incomplete segment of the proceeding participated. new trade names may be submitted via a Separate (e.g., an ongoing administrative review, new Rate Certification.
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Period to be reviewed
GGB Bearing Technology (Suzhou) Co., Ltd ...... GSP Automotive Group Wenzhou Co. Ltd ...... Hangzhou Yonggu Auto-Parts Co., Ltd ...... Yantai CMC Bearing Co. Ltd./CMC Bearings Co. Ltd ...... Zhejiang CTL Auto Parts Manufacturing Incorporated Co., Ltd ...... Zhejiang Zhaofeng Mechanical & Electronic Co., Ltd ...... Zhejiang Zhengda Bearing Co., Ltd ...... TURKEY: Welded Carbon Steel Standard Pipe and Tube,5 A–489–501 ...... 5/1/15–4/30/16 Borusan Ihracat Ithalat ve Dagitim A.S ...... Cayirova Boru Sanayi ve Ticaret A.S ...... Countervailing Duty Proceedings THE PEOPLE’S REPUBLIC OF CHINA: High Pressure Steel Cylinders, C–570–978 ...... 1/1/15–12/31/15 Beijing Tianhai Industry Co., Ltd ......
Suspension Agreements Administrative Protective Orders and 351.102(b)(21) the information is being Letters of Appearance submitted and, if the information is None. Interested parties must submit submitted to rebut, clarify, or correct Duty Absorption Reviews applications for disclosure under factual information already on the administrative protective orders in record, to provide an explanation During any administrative review accordance with 19 CFR 351.305. On identifying the information already on covering all or part of a period falling January 22, 2008, the Department the record that the factual information between the first and second or third published Antidumping and seeks to rebut, clarify, or correct. The and fourth anniversary of the Countervailing Duty Proceedings: final rule also modified 19 CFR 351.301 publication of an antidumping duty Documents Submission Procedures; so that, rather than providing general order under 19 CFR 351.211 or a APO Procedures, 73 FR 3634 (January time limits, there are specific time limits determination under 19 CFR 22, 2008). Those procedures apply to based on the type of factual information 351.218(f)(4) to continue an order or administrative reviews included in this being submitted. These modifications are effective for all segments initiated on suspended investigation (after sunset notice of initiation. Parties wishing to or after May 10, 2013. Please review the review), the Secretary, if requested by a participate in any of these administrative reviews should ensure final rule, available at http:// domestic interested party within 30 enforcement.trade.gov/frn/2013/ days of the date of publication of the that they meet the requirements of these procedures (e.g., the filing of separate 1304frn/2013–08227.txt, prior to notice of initiation of the review, will submitting factual information in this determine, consistent with FAG Italia v. letters of appearance as discussed at 19 CFR 351.103(d)). segment. United States, 291 F.3d 806 (Fed Cir. Any party submitting factual 2002), as appropriate, whether Revised Factual Information information in an antidumping duty or antidumping duties have been absorbed Requirements countervailing duty proceeding must by an exporter or producer subject to the On April 10, 2013, the Department certify to the accuracy and completeness review if the subject merchandise is published Definition of Factual of that information.6 Parties are hereby sold in the United States through an Information and Time Limits for reminded that revised certification importer that is affiliated with such Submission of Factual Information: requirements are in effect for company/ exporter or producer. The request must Final Rule, 78 FR 21246 (April 10, government officials as well as their include the name(s) of the exporter or 2013), which modified two regulations representatives. All segments of any producer for which the inquiry is related to antidumping and antidumping duty or countervailing requested. countervailing duty proceedings: the duty proceedings initiated on or after definition of factual information (19 August 16, 2013, should use the formats Gap Period Liquidation CFR 351.102(b)(21)), and the time limits for the revised certifications provided at the end of the Final Rule.7 The For the first administrative review of for the submission of factual information (19 CFR 351.301). The final Department intends to reject factual any order, there will be no assessment rule identifies five categories of factual submissions in any proceeding of antidumping or countervailing duties information in 19 CFR 351.102(b)(21), segments if the submitting party does on entries of subject merchandise which are summarized as follows: (i) not comply with applicable revised entered, or withdrawn from warehouse, Evidence submitted in response to certification requirements. for consumption during the relevant questionnaires; (ii) evidence submitted Revised Extension of Time Limits provisional-measures ‘‘gap’’ period, of in support of allegations; (iii) publicly Regulation the order, if such a gap period is available information to value factors applicable to the POR. under 19 CFR 351.408(c) or to measure On September 20, 2013, the the adequacy of remuneration under 19 Department modified its regulation CFR 351.511(a)(2); (iv) evidence placed 4 6 See section 782(b) of the Act. The entity listed above was inadvertently on the record by the Department; and (v) excluded from the initiation notice that published 7 See Certification of Factual Information To on July 7, 2016 (81 FR 44260). evidence other than factual information Import Administration During Antidumping and Countervailing Duty Proceedings, 78 FR 42678 (July 5 The two company names listed were misspelled described in (i)–(iv). The final rule requires any party, when submitting 17, 2013) (‘‘Final Rule’’); see also the frequently in the initiation notice that published on July 7, asked questions regarding the Final Rule, available 2016 (81 FR 44260). The correct spellings are listed factual information, to specify under at http://enforcement.trade.gov/tlei/notices/factual_ in this notice. which subsection of 19 CFR info_final_rule_FAQ_07172013.pdf.
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concerning the extension of time limits Dated: August 5, 2016. under authority of the Magnuson- for submissions in antidumping and Christian Marsh, Stevens Act as amended in 2006. The countervailing duty proceedings: Final Deputy Assistant Secretary for Antidumping groundfish FMPs are implemented by Rule, 78 FR 57790 (September 20, 2013). and Countervailing Duty Operations. regulations at 50 CFR part 679. The Crab The modification clarifies that parties [FR Doc. 2016–19152 Filed 8–10–16; 8:45 am] FMP is implemented by regulations at may request an extension of time limits BILLING CODE 3510–DS–P 50 CFR part 680. before a time limit established under In the last decade or more, the Part 351 expires, or as otherwise Council has developed several specified by the Secretary. In general, an DEPARTMENT OF COMMERCE cooperative programs as options in larger catch share programs. As part of extension request will be considered National Oceanic and Atmospheric untimely if it is filed after the time limit those cooperative programs, the Council Administration required that cooperatives submit an established under Part 351 expires. For annual written report detailing various submissions which are due from Submission for OMB Review; activities of the cooperative. These multiple parties simultaneously, an Comment Request reports are intended to be a resource for extension request will be considered The Department of Commerce will the Council to track the effectiveness of untimely if it is filed after 10:00 a.m. on submit to the Office of Management and the cooperative and their ability to meet the due date. Examples include, but are Budget (OMB) for clearance the the Council’s goals. Additionally, they not limited to: (1) Case and rebuttal following proposal for collection of are a tool for the cooperatives to provide briefs, filed pursuant to 19 CFR 351.309; information under the provisions of the feedback on the programs. Regulation (2) factual information to value factors Paperwork Reduction Act (44 U.S.C. provides a framework for the minimum under 19 CFR 351.408(c), or to measure Chapter 35). required information for most of the the adequacy of remuneration under 19 Agency: National Oceanic and reports, while the Council has the CFR 351.511(a)(2), filed pursuant to 19 Atmospheric Administration (NOAA). flexibility to augment this framework CFR 351.301(c)(3) and rebuttal, Title: Alaska Council Cooperative with additional information requests clarification and correction filed Reports. that may be pertinent to current issues OMB Control Number: 0648–0678. in the fishery. pursuant to 19 CFR 351.301(c)(3)(iv); (3) Form Number(s): None. comments concerning the selection of a Type of Request: Regular (revision This request combines voluntary, surrogate country and surrogate values and extension of a currently approved non-regulatory cooperative report and rebuttal; (4) comments concerning information collection). elements from four collections (OMB U.S. Customs and Border Protection Number of Respondents: 26. Control Nos. 0648–0401, –0565, –0678, data; and (5) quantity and value Average Hours per Response: Crab and –0697) with the Annual Rockfish questionnaires. Under certain Rationalization Cooperative Annual Cooperative Report from OMB Control circumstances, the Department may Report, 30 hours; Rockfish Cooperative Number 0648–0545 which contains both elect to specify a different time limit by Annual Report, 45 hours; Amendment required (per 50 CFR 679.5(r)) and which extension requests will be 80 Annual Cooperative Report, voluntary data elements. The title of this considered untimely for submissions Amendment 80 Halibut Bycatch collection is changed from ‘‘Crab Avoidance Progress Report, American Rationalization (CR) Program: CR which are due from multiple parties Fisheries Act (AFA) Catcher Vessel Cooperative Annual Report’’ to read: simultaneously. In such a case, the Intercooperative Agreement and AFA ‘‘Alaska Council Cooperative Annual Department will inform parties in the Annual Catcher Vessel Intercooperative Reports.’’ In addition to presentation of letter or memorandum setting forth the Report, 40 hours each; Amendment 80 the report before the Council, all of the deadline (including a specified time) by Halibut Prohibited Species Catch annual reports must be submitted to the which extension requests must be filed Management Plan; 12 hours. Council by email or fax for the April to be considered timely. This Burden Hours: 1,129. Council meeting. modification also requires that an Needs and Uses: This request is for Affected Public: Business or other for- extension request must be made in a revision and extension of an existing profit organizations. separate, stand-alone submission, and information collection. Frequency: Annually. clarifies the circumstances under which The Magnuson-Stevens Fishery Respondent’s Obligation: Voluntary the Department will grant untimely- Conservation and Management Act, 16 and required to obtain or retain benefits. filed requests for the extension of time U.S.C. 1801 et seq. (Magnuson-Stevens This information collection request limits. These modifications are effective Act) authorizes the North Pacific may be viewed at reginfo.gov. Follow Fishery Management Council (Council) for all segments initiated on or after the instructions to view Department of to prepare and amend fishery October 21, 2013. Please review the Commerce collections currently under management plans for any fishery in final rule, available at http:// review by OMB. waters under its jurisdiction. NOAA’s Written comments and www.gpo.gov/fdsys/pkg/FR-2013-09-20/ National Marine Fisheries Service html/2013-22853.htm, prior to recommendations for the proposed (NMFS) manages the U.S. groundfish information collection should be sent submitting factual information in these fisheries of the exclusive economic zone segments. within 30 days of publication of this off Alaska under the Fishery notice to OIRA_Submission@ These initiations and this notice are Management Plan for Groundfish of the omb.eop.gov or fax to (202) 395–5806. in accordance with section 751(a) of the Gulf of Alaska and the Fishery Act (19 U.S.C. 1675(a)) and 19 CFR Management Plan for Groundfish of the Dated: August 8, 2016. 351.221(c)(1)(i). Bering Sea and Aleutian Islands (BSAI) Sarah Brabson, Management Area. The fishery NOAA PRA Clearance Officer. management plans (FMPs) were [FR Doc. 2016–19083 Filed 8–10–16; 8:45 am] approved by the Secretary of Commerce BILLING CODE 3510–22–P
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DEPARTMENT OF COMMERCE the comments received in the Request information collection and its expected for Comment, focusing specifically on costs and burden. National Telecommunications and the potential benefits and challenges of DATES: Comments must be submitted on Information Administration these technologies and what role, if any, or before September 12, 2016. the U.S. Government should play in this ADDRESSES: Comments regarding the Fostering the Advancement of the area. This workshop will help to inform Internet of Things Workshop burden estimated or any other aspect of the Department’s forthcoming issue- the information collection, including AGENCY: National Telecommunications spotting, agenda-setting green paper on suggestions for reducing the burden, and Information Administration, U.S. IoT. may be submitted directly to the Office Department of Commerce. NTIA will post a detailed agenda on of Information and Regulatory Affairs ACTION: Notice of open meeting. its Web site, www.ntia.doc.gov/ (OIRA) in OMB, within 30 days of the category/internet-things, prior to the notice’s publication, by email at SUMMARY: The National meeting. The workshop will consist of [email protected]. Please Telecommunications and Information a number of panels and speakers that identify the comments by OMB Control Administration (NTIA) will convene a will explore in more depth the obstacles No. 3038–NEW. Please provide the workshop on behalf of the U.S. and opportunities raised by commenters Commodity Futures Trading Department of Commerce’s Internet on the federal government’s role in IoT Commission (‘‘CFTC’’ or Policy Task Force and the Digital deployment. Agenda topics and format ‘‘Commission’’) with a copy of all Economy Leadership Team on Fostering are subject to change. submitted comments at the address the Advancement of the Internet of The meeting is open to the public and listed below. Please refer to OMB Things. the press. The meeting is physically Reference No. 3038–NEW, found on DATES: The workshop will be held on accessible to people with disabilities. http://reginfo.gov. Comments may also September 1, 2016, from 9:00 a.m. to Requests for sign language be mailed to the Office of Information 3:00 p.m., Eastern Daylight Time. interpretation or other auxiliary aids and Regulatory Affairs, Office of ADDRESSES: The workshop will be held should be directed to Travis Hall at Management and Budget, Attention: at the U.S. Patent and Trademark Office, (202) 482–3522 or [email protected] at Desk Officer for the Commodity Futures 600 Dulany Street, Alexandria, Virginia least seven (7) business days prior to the Trading Commission, 725 17th Street 22314. The location of the meeting is meeting. The meeting will also be NW., Washington, DC 20503, and to: subject to change. Please refer to NTIA’s webcast. Requests for real-time Nisha Smalls, Office of Customer Web site, http://www.ntia.doc.gov/ captioning of the webcast or other Education and Outreach, Commodity category/internet-things, for the most auxiliary aids should be directed to Futures Trading Commission, 1155 21st current information. Travis Hall at (202) 482–3522 or thall@ Street NW., Washington, DC 20581; or FOR FURTHER INFORMATION CONTACT: ntia.doc.gov at least seven (7) business through the Agency’s Web site at http:// Travis Hall, National days prior to the meeting. Please refer to comments.cftc.gov. Follow the Telecommunications and Information NTIA’s Web site, http://www.ntia.doc. instructions for submitting comments Administration, U.S. Department of gov/category/internet-things, for the through the Web site. Commerce, 1401 Constitution Avenue most current information. Comments may also be mailed to: NW., Room 4725, Washington, DC Dated: August 5, 2016. Christopher Kirkpatrick, Secretary of the 20230; telephone (202) 482–3522; email Angela M. Simpson, Commission, Commodity Futures [email protected]. Please direct media Deputy Assistant Secretary, National Trading Commission, Three Lafayette inquiries to NTIA’s Office of Public Telecommunications and Information Centre, 1155 21st Street NW., Affairs, (202) 482–7002; email press@ Administration. Washington, DC 20581; or sent by hand ntia.doc.gov. [FR Doc. 2016–19048 Filed 8–10–16; 8:45 am] delivery/courier to the same address. A copy of the supporting statements SUPPLEMENTARY INFORMATION: BILLING CODE 3510–60–P for the collection of information Recognizing the vital importance of the discussed above may be obtained by Internet to U.S. innovation, prosperity, visiting reginfo.gov. All comments must education, and civic and cultural life, COMMODITY FUTURES TRADING be submitted in English, or if not, the Department of Commerce has made COMMISSION accompanied by an English translation. it a top priority to encourage growth of Comments will be posted as received to the digital economy and ensure that the Agency Information Collection Activities Under OMB Review http://www.cftc.gov. Internet remains an open platform for FOR FURTHER INFORMATION CONTACT: innovation and free expression. As part AGENCY: Commodity Futures Trading Nisha Smalls, Office of Customer of the Department’s Digital Economy Commission. Education and Outreach, Commodity Agenda, the National ACTION: Notice. Futures Trading Commission, 1155 21st Telecommunications and Information Street NW., Washington, DC 20581, Administration (NTIA) initiated an SUMMARY: In compliance with the (202) 418–5895; FAX: (202) 418–5541; inquiry regarding the Internet of Things Paperwork Reduction Act of 1995 email: [email protected] and refer to this (IoT) to review the current technological (PRA), this notice announces that the Federal Register notice. A copy may and policy landscape, which included a Information Collection Request (ICR) also be obtained from this contact. Request for Comment on ‘‘The Benefits, abstracted below has been forwarded to SUPPLEMENTARY INFORMATION: The Challenges, and Potential Roles for the the Office of Management and Budget Commission’s Office of Customer Government in Fostering the (OMB) for review and comment. The Education and Outreach (OCEO) Advancement of the Internet of ICR describes the nature of the develops campaigns to change customer Things.’’ 1 This workshop will build on behaviors, so that customers can better Things (Apr. 5, 2016) available at https://www.ntia. 1 Request for Comments on the Benefits, doc.gov/federal-register-notice/2016/rfc-potential- avoid fraud as defined under the Challenges, and Potential Roles for Government in roles-government-fostering-advancement-internet- Commodity Exchange Act. The OCEO Fostering the Advancement of the Internet of of-things. intends to survey the public by
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identifying customers and determining correct respondents and questions to collection methods such as mall if the CFTC’s SmartCheckSM campaign determine if the CFTC’s SmartCheckSM intercepts. The online method also is helping them to identify, avoid, and campaign is helping customers identify, allows for a quicker turnaround for data report financial fraud. avoid, and report financial fraud. collection. No other collection methods Title: CFTC SmartCheck Annual The OCEO will use the information will be used. Campaign Impact Tracking Survey, collected in the survey to refine the Burden Statement: The screening (OMB Control No. 3038–NEW). This is methods used to inform the public a request for approval of a new about how to best detect and report questions will take about 1 minute to collection. financial fraud. This will be done by complete. It is anticipated that 4,000 Abstract: In 2010, the Dodd-Frank creating a final summary report that people will be screened. The survey will Act 1 expanded the Commission’s includes key findings from the survey. take about 15 minutes. The cost of the authority to, among other matters Findings from the summary report screener survey will be approximately related to regulatory oversight, establish will be used to directionally inform the $3,125, which equates to $46.85 per funding of consumer education outreach efforts that the CFTC burden hour. 2,000 people will take the initiatives under its new Whistleblower undertakes concerning helping 15 minute survey. The cost of the full authority.2 Under this new authority, customers avoid financial fraud. survey will be approximately $46,875, the Commission established the OCEO The survey will be administered using which equates to $93.75 per burden to, among other efforts, survey the an online survey tool. The online hour. Based on these assumptions, the public regarding consumer education modality approach will allow total burden hours will be 566.7 hours. initiatives.3 This notice announces a presentation of test material to The Commission estimates the average public survey. This survey will include participants in a more convenient and burden of this collection of information screening questions to identify the time-efficient manner than other as follows:
ESTIMATED ANNUAL REPORTING BURDEN HOURS
Annual reporting Frequency of reporting Hours per report Total
17 CFR 165.12 ...... 4,000 1 response per respond- 1 minute per response .... 4,000 66.7 hours total burden. ent. 17 CFR 165.12 ...... 2,000 1 response per respond- 15 minutes per response 2,000 500 hours total burden. ent.
The proposed survey questions how likely are you to be involved in 3 ...... Foreign currency trading (FOREX). appear below: making decisions for your household? 4 ...... Any type of futures or options. 5 ...... None of these [Single Punch (SP)]. CFTC SmartCheck Annual Campaign 1 ...... Very likely. 6 ...... Don’t know [SP]. Impact Tracking Survey 2 ...... Somewhat likely. CFTC TARGET = Age 50–65; HH 3 ...... Not too likely. Survey 4 ...... Not at all likely. income 60k+; Answers 1 or 2 for [Grid, SP Across] question 1; Invests in 2 or more products in question 2 2. Below is a list of financial products. Please answer yes or no to each of the Please select all that you currently are following questions. Screener invested in or have invested in. 1. When it comes to family and Yes No personal investments like stocks, 1 ...... Stocks or shares. 1 2 mutual funds, or other trading products, 2 ...... Precious metals like gold or silver.
3...... Have you read, seen, or heard anything about the Commodity Futures Trading Commission (CFTC)? 4...... Have you read, seen, or heard anything about CFTC SmartCheck, a campaign that promotes expert tools and resources to check the background of financial professionals, learn how to avoid investment fraud, and report suspicious activity? 5...... Have you read, seen, or heard anything about SmartCheck.gov, a website that links to databases which allow investors to check the background of financial professionals? 6...... Have you read, seen, or heard anything about Investor.gov, a website that allows you to check the background of investment adviser representatives and firms? 7...... Have you read, seen, or heard anything about BrokerCheck.org, a website that allows you to check the background of brokers who sell stocks, bonds, mutual funds and other securities?
[Grid, SP Across. Randomize Grid complete. Please indicate how likely or had not invested with before, how likely Rows] unlikely you are to complete the actions are you to: using the scale below. If you were Below are a number of actions that considering investing with someone you you may or may not be likely to
1 See Dodd-Frank Wall Street Reform and may be accessed at http://www.cftc.gov/ 2 See 7 U.S.C. 26. Consumer Protection Act, Public Law 111–203, 124 LawRegulation/DoddFrankAct/index.htm. 3 See 17 CFR 165.12. Stat. 1376 (2010). The text of the Dodd-Frank Act
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Very likely Somewhat likely Not likely or unlikely Not too likely Not at all Likely
1 2 3 4 5
4 ...... Not at all likely. 8...... Review performance history. [SP] 9...... Talk to references and/or past cli- 18. If you suspected an investment ents. you were aware of was fraudulent, how [MP; Randomize Leaving Last 1 at the 10. .... Confirm certifications and/or edu- likely would you be to report it to a End] cation. government financial agency such as the 20. Which, if any, of the following do 11. .... Perform a general Internet search. U.S. Commodity Futures Trading you think are potential signs of 12. .... Check disciplinary history with an of- Commission (CFTC) or the U.S. investment fraud? If the person selling ficial financial regulator. Securities and Exchange Commission the investment . . . 13. .... Check licensing and/or registration (SEC)? status with an official financial reg- ulator. 1 ...... said the investment has a guaran- 1 ...... Very likely. 14. .... Personally interview. teed rate of return. 2 ...... Somewhat likely. 2 ...... said s/he has a special credential, so 15. .... Check job affiliations with an official 3 ...... Not too likely. they can be trusted. financial regulator. 4 ...... Not at all likely. 3 ...... said that many of your friends have 16. .... None of these/don’t know [SP]. already invested in the opportunity. [SP] 4 ...... was willing to charge you half of the [SP] regular commission. 19. If you became aware that an 5 ...... said the opportunity was closing 17. Generally speaking, how investment you were already a part of soon, so it was important to act concerned are you about unknowingly was fraudulent, how likely would you quickly. being part of a fraudulent investment? be to report it to a government financial 6 ...... None of these [SP]. agency such as the U.S. Commodity 1 ...... Very concerned. Futures Trading Commission (CFTC) or [Grid, SP Across. Randomize Grid 2 ...... Somewhat concerned. the U.S. Securities and Exchange Rows] Commission (SEC)? 3 ...... Not too concerned. Below are a number of statements 4 ...... Not at all concerned. 1 ...... Very likely. with which you may or may not agree. 2 ...... Somewhat likely. Please indicate how much you agree or 3 ...... Not too likely. disagree with each statement.
Strongly disagree Somewhat disagree Neither agree nor disagree Somewhat agree Strongly agree
1 2 3 4 5
21...... It is important to know the common signs of fraud when investing. 22...... The government reviews and investigates all alleged reports of investment fraud. 23...... I know where to go to report suspected or known incidents of investment fraud. 24...... I know where to go to check the background of a financial professional. 25...... Before I invest, it is important to check the registration and/or licensing status of a financial professional. 26...... Each year, it is important to check the registration and/or licensing of a financial professional with whom I invest. 27...... Before I invest, it is important to check the disciplinary history of a financial professional. 28...... Each year, it is important to check the disciplinary history of a financial professional.
(Authority: 44 U.S.C. 3501 et seq.) information under the provisions of the Type of Request: In existence without Dated: August 8, 2016. Paperwork Reduction Act. OMB Control Number. Number of Respondents: 7650. Christopher J. Kirkpatrick, DATES: Consideration will be given to all Responses per Respondent: 1. Secretary of the Commission. comments received by September 12, Annual Responses: 7650. 2016. [FR Doc. 2016–19127 Filed 8–10–16; 8:45 am] Average Burden per Response: 115 BILLING CODE 6351–01–P FOR FURTHER INFORMATION CONTACT: Fred minutes. Licari, 571–372–0493. Annual Burden Hours: 2533 hours. Needs and Uses: The information DEPARTMENT OF DEFENSE SUPPLEMENTARY INFORMATION: collection requirement is necessary to Department of the Army Title, Associated Form and OMB administer a number of different Number: Exchange Employee benefits and pay available to eligible [Docket ID USA–2016–HQ–0009] Management and Pay System; Exchange Exchange associates, former associates Form 1400–011 ‘‘Annuity Application’’, (retirees), their personal dependents, Submission for OMB Review; Exchange From 1450–018 ‘‘Application beneficiaries, spouses, and ex-spouses. Comment Request for Payment of Survivor Annuity’’, This includes collecting data needed to ACTION: Notice. Exchange Form 1700–012 ‘‘Beneficiary provide and administer pay, salary and Designation’’, Exchange Form 6650–007 retirement funds/entitlements. SUMMARY: The Department of Defense ‘‘Patient Health Questionnaire’’, Web- Affected Public: Individuals or has submitted to OMB for clearance, the based ‘‘Health/Benefit Enrollment’’; households and Federal Government. following proposal for collection of OMB Control Number: 0702–XXXX. Frequency: On occasion.
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Respondent’s Obligation: Required to SUPPLEMENTARY INFORMATION: Drive, East Tower, Suite 02G09, Obtain or Retain Benefits. Title, Associated Form and OMB Alexandria, VA 22350–3100. OMB Desk Officer: Ms. Jasmeet Number: Exchange Accident/Incident Dated: August 8, 2016. Seehra. Reports; Exchange Form 3900–017, Aaron Siegel, Comments and recommendations on ‘‘Statements’’, OMB Control Number: the proposed information collection 0702–XXXX. Alternate OSD Federal Register Liaison Officer, Department of Defense. should be emailed to Ms. Jasmeet Type of Request: In existence without Seehra, DoD Desk Officer, at Oira_ OMB Control Number. [FR Doc. 2016–19063 Filed 8–10–16; 8:45 am] [email protected]. Please Number of Respondents: 4854. BILLING CODE 5001–06–P identify the proposed information Responses per Respondent: 1. collection by DoD Desk Officer and the Annual Responses: 4854. DEPARTMENT OF DEFENSE Docket ID number and title of the Average Burden per Response: 60 minutes. information collection. Department of the Army You may also submit comments and Annual Burden Hours: 4854 hours. recommendations, identified by Docket Needs and Uses: The information Army Education Advisory Committee ID number and title, by the following collection requirement is necessary to Meeting Notice method: record incidents such as accidents, • Federal eRulemaking Portal: http:// mishaps, fires, thefts or any issue AGENCY: Department of the Army, DoD. www.regulations.gov. Follow the involving government property. This ACTION: Notice of open committee instructions for submitting comments. collection insures the Exchange has the meeting. Instructions: All submissions received necessary information regarding injuries must include the agency name, Docket and illnesses in order to administer and SUMMARY: The Department of the Army ID number and title for this Federal follow-up on medical treatment and is publishing this notice to announce Register document. The general policy payment of claims. Collection assists the the following Federal advisory for comments and other submissions Exchange in recouping damages, committee meeting of the Army from members of the public is to make correcting deficiencies, initiating Education Advisory Committee. This these submissions available for public appropriate disciplinary action(s), filing meeting is open to the public. viewing on the Internet at http:// insurance and workers’ compensation DATES: The Army Education Advisory www.regulations.gov as they are required documents. Committee will meet from 9:00 a.m. to received without change, including any Affected Public: Individuals or 5:00 p.m. on September 7 & 8, 2016. personal identifiers or contact Households and Federal Government. ADDRESSES: Army Education Advisory information. Frequency: On occasion. Committee, 950 Jefferson Avenue, DoD Clearance Officer: Mr. Frederick Respondent’s Obligation: Voluntary. Building 950, U.S. Training and Licari. OMB Desk Officer: Ms. Jasmeet Doctrine Command (TRADOC) Written requests for copies of the Seehra. Headquarters, Conference Room 3075, Comments and recommendations on information collection proposal should Ft. Eustis, VA 23604. the proposed information collection be sent to Mr. Licari at WHS/ESD FOR FURTHER INFORMATION CONTACT: Mr. Directives Division, 4800 Mark Center should be emailed to Ms. Jasmeet Seehra, DoD Desk Officer, at Oira_ Wayne Joyner, the Designated Federal Drive, East Tower, Suite 02G09, Officer for the committee, in writing at Alexandria, VA 22350–3100. [email protected]. Please identify the proposed information ATTN: ATTG–ZC, TRADOC, 950 Dated: August 8, 2016. collection by DoD Desk Officer and the Jefferson Ave., Fort Eustis, VA 23604, by Aaron Siegel, Docket ID number and title of the email at [email protected], or Alternate OSD Federal Register Liaison information collection. by telephone at (757) 501–5810. Officer, Department of Defense. You may also submit comments and SUPPLEMENTARY INFORMATION: The [FR Doc. 2016–19062 Filed 8–10–16; 8:45 am] recommendations, identified by Docket committee meeting is being held under BILLING CODE 5001–06–P ID number and title, by the following the provisions of the Federal Advisory method: Committee Act of 1972 (5 U.S.C., • Federal eRulemaking Portal: http:// Appendix, as amended), the DEPARTMENT OF DEFENSE www.regulations.gov. Follow the Government in the Sunshine Act of instructions for submitting comments. 1976 (5 U.S.C. 552b, as amended), and Department of the Army Instructions: All submissions received 41 CFR 102–3.150. [Docket ID USA–2014–0033] must include the agency name, Docket Purpose of the Meeting: The purpose ID number and title for this Federal of the meeting is to collect and analyze Submission for OMB Review; Register document. The general policy data dealing with how to blend the best Comment Request for comments and other submissions characteristics of civilian and military from members of the public is to make educational institutions to create a ACTION: Notice. these submissions available for public premier learning environment, how the Army manages and assesses talent, and SUMMARY: The Department of Defense viewing on the Internet at http:// will finalize provisional subcommittee has submitted to OMB for clearance, the www.regulations.gov as they are findings and recommendations. following proposal for collection of received without change, including any Proposed Agenda: September 7–8: information under the provisions of the personal identifiers or contact The committee is chartered to provide Paperwork Reduction Act. information. DoD Clearance Officer: Mr. Frederick independent advice and DATES: Consideration will be given to all Licari. recommendations to the Secretary of the comments received by September 12, Written requests for copies of the Army on the educational, doctrinal, and 2016. information collection proposal should research policies and activities of U.S. FOR FURTHER INFORMATION CONTACT: Fred be sent to Mr. Licari at WHS/ESD Army educational programs. The Licari, 571–372–0493. Directives Division, 4800 Mark Center committee will review and evaluate
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information related to Army University provided to the committee until its next Committee Act (FACA) of 1972 (5 and Talent Management, and discuss meeting. U.S.C., Appendix, as amended) and 41 and deliberate provisional findings and Pursuant to 41 CFR 102–3.140d, the CFR 102–3.50(d). The Board’s charter recommendations submitted by its Committee is not obligated to allow a and contact information for the Board’s subcommittees. member of the public to speak or Designated Federal Officer (DFO) can be Public Accessibility to the Meeting: otherwise address the Committee during found at http://www.facadatabase.gov/. Pursuant to 5 U.S.C. 552b, as amended, the meeting. Members of the public will The Board focuses on the overall and 41 CFR 102–3.140 through 102– be permitted to make verbal comments management and governance of the 3.165, and subject to the availability of during the Committee meeting only at National Defense University (NDU) in space, this meeting is open to the the time and in the manner described achieving its mission to support the public. Seating is on a first to arrive below. If a member of the public is joint warfighter. The Board provides the basis. Attendees are requested to submit interested in making a verbal comment Secretary of Defense and the Deputy their name, affiliation, and daytime at the open meeting, that individual Secretary of Defense, through the phone number seven business days must submit a request, with a brief Chairman of the Joint Chiefs of Staff and prior to the meeting to Mr. Joyner, via statement of the subject matter to be the President of the National Defense electronic mail, the preferred mode of addressed by the comment, at least University, independent advice and submission, at the address listed in the seven business days in advance to the recommendations on accreditation FOR FURTHER INFORMATION CONTACT committee’s Designated Federal Official, compliance, organizational section. via electronic mail, the preferred mode management, strategic planning, Because the meeting of the committee of submission, at the address listed in resource management, and other matters will be held in a Federal Government the FOR FURTHER INFORMATION CONTACT of interest to the NDU in its mission to facility on a military base, security section. The Designated Federal Official support the joint warfighter through screening is required. A photo ID is will log each request, in the order rigorous Joint Professional Military required to enter base. Please note that received, and in consultation with the Education. The Board is composed of no security and gate guards have the right committee Chair, determine whether the more than 12 members who are eminent to inspect vehicles and persons seeking subject matter of each comment is authorities in the fields of defense, to enter and exit the installation. relevant to the committee’s mission management, leadership, academia, TRADOC Headquarters is fully and/or the topics to be addressed in this national military strategy or joint handicap accessible. Wheelchair access public meeting. A 15-minute period planning at all levels of war, joint is available in front at the main entrance near the end of the meeting will be doctrine, joint command and control, or of the building. For additional available for verbal public comments. joint requirements and development. information about public access Members of the public who have All members are appointed to provide procedures, contact Mr. Joyner, the requested to make a verbal comment advice on behalf of the Government on committee’s Designated Federal Officer, and whose comments have been the basis of their best judgment without at the email address or telephone deemed relevant under the process representing any particular point of number listed in the FOR FURTHER described above, will be allotted no view and in a manner free from conflict INFORMATION CONTACT section. more than three minutes during the of interest. Except for reimbursement of Written Comments or Statements: period, and will be invited to speak in official Board-related travel and per Pursuant to 41 CFR 102–3.105(j) and the order in which their requests were diem, Board members serve without 102–3.140 and section 10(a)(3) of the received by Designated Federal Official. compensation. Federal Advisory Committee Act, the The DoD may establish public or interested organizations may Brenda S. Bowen, subcommittees, task forces, or working submit written comments or statements Army Federal Register Liaison Officer. groups to support the Board. All to the committee in response to the [FR Doc. 2016–18975 Filed 8–10–16; 8:45 am] subcommittees operate under the stated agenda of the open meeting or in BILLING CODE 5001–03–P provisions of FACA and the regard to the committee’s mission in Government in the Sunshine Act, will general. Written comments or not work independently of the Board, statements should be submitted to Mr. DEPARTMENT OF DEFENSE report all findings to the Board for full Joyner, the committee Designated deliberation and discussion, and have Office of the Secretary Federal Officer, via electronic mail, the no authority to make decisions and preferred mode of submission, at the Charter Renewal of Department of recommendations, verbally or in address listed in the FOR FURTHER Defense Federal Advisory Committees writing, on behalf of the Board. No INFORMATION CONTACT section. Each page subcommittee or any of its members can of the comment or statement must AGENCY: Department of Defense. update or report, verbally or in writing, include the author’s name, title or ACTION: Renewal of Federal Advisory directly to the DoD or any Federal affiliation, address, and daytime phone Committee. officers or employees. number. The Designated Federal Official The Board’s DFO, pursuant to DoD will review all submitted written SUMMARY: The Department of Defense policy, must be a full-time or permanent comments or statements and provide (DoD) is publishing this notice to part-time DoD employee, and must be in them to members of the committee for announce that it is renewing the charter attendance for the duration of each and their consideration. Written comments for the Board of Visitors, National every Board or subcommittee meeting. or statements being submitted in Defense University (‘‘the Board). The public or interested organizations response to the agenda set forth in this FOR FURTHER INFORMATION CONTACT: Jim may submit written statements to the notice must be received by the Freeman, Advisory Committee Board membership about the Board’s Designated Federal Official at least Management Officer for the Department mission and functions. Such statements seven business days prior to the meeting of Defense, 703–692–5952. may be submitted at any time or in to be considered by the committee. SUPPLEMENTARY INFORMATION: The response to the stated agenda of planned Written comments or statements Board’s charter is being renewed in Board meetings. All written statements received after this date may not be accordance with the Federal Advisory must be submitted to the Board’s DFO
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who will ensure the written statements assess the impact of its information DEPARTMENT OF ENERGY are provided to the membership for collection requirements and minimize their consideration. the public’s reporting burden. It also Federal Energy Regulatory Commission Dated: August 8, 2016. helps the public understand the Aaron Siegel, Department’s information collection [Docket No. EL16–100–000] Alternate OSD Federal Register Liaison requirements and provide the requested Officer, Department of Defense. data in the desired format. ED is West Deptford Energy, LLC; Notice of Institution of Section 206 Proceeding [FR Doc. 2016–19061 Filed 8–10–16; 8:45 am] soliciting comments on the proposed and Refund Effective Date BILLING CODE 5001–06–P information collection request (ICR) that is described below. The Department of On August 1, 2016, the Commission Education is especially interested in issued an order in Docket No. EL16– DEPARTMENT OF EDUCATION public comment addressing the 100–000, pursuant to section 206 of the following issues: (1) Is this collection Federal Power Act (FPA), 16 U.S.C. [Docket No.: ED–2016–ICCD–0091] necessary to the proper functions of the 824e (2012), instituting an investigation Agency Information Collection Department; (2) will this information be into the justness and reasonableness of Activities; Comment Request; Federal processed and used in a timely manner; West Deptford Energy, LLC’s reactive Perkins Loan Program Regulations (3) is the estimate of burden accurate; power rates. West Deptford Energy, LLC, and General Provisions Regulations (4) how might the Department enhance 156 FERC ¶ 61,084 (2016). the quality, utility, and clarity of the The refund effective date in Docket AGENCY: Federal Student Aid (FSA), information to be collected; and (5) how No. EL16–100–000, established Department of Education (ED). might the Department minimize the pursuant to section 206(b) of the FPA, ACTION: Notice. burden of this collection on the will be the date of publication of this respondents, including through the use notice in the Federal Register. SUMMARY: In accordance with the of information technology. Please note Dated: August 1, 2016. Paperwork Reduction Act of 1995 (44 that written comments received in Nathaniel J. Davis, Sr., U.S.C. chapter 3501 et seq.), ED is proposing an extension of an existing response to this notice will be Deputy Secretary. information collection. considered public records. [FR Doc. 2016–19078 Filed 8–10–16; 8:45 am] DATES: Interested persons are invited to Title of Collection: Federal Perkins BILLING CODE 6717–01–P submit comments on or before October Loan Program Regulations and General Provisions Regulations. 11, 2016. DEPARTMENT OF ENERGY ADDRESSES: To access and review all the OMB Control Number: 1845–0019. documents related to the information Type of Review: An extension of an Federal Energy Regulatory collection listed in this notice, please existing information collection. Commission use http://www.regulations.gov by searching the Docket ID number ED– Respondents/Affected Public: Private Notice of Commission Staff 2016–ICCD–0091. Comments submitted Sector; Individuals or Households; Attendance State, Local, and Tribal Governments. in response to this notice should be The Federal Energy Regulatory submitted electronically through the Total Estimated Number of Annual Commission (Commission) hereby gives Federal eRulemaking Portal at http:// Responses: 11,616,710. notice that members of the www.regulations.gov by selecting the Total Estimated Number of Annual Commission’s staff may attend the Docket ID number or via postal mail, Burden Hours: 6,247,152. following meetings related to the commercial delivery, or hand delivery. Abstract: This request is for continued wholesale markets of ISO New England Please note that comments submitted by Inc. (ISO–NE): fax or email and those submitted after approval of the reporting and record- Markets and Public Policy: Solution the comment period will not be keeping requirements that are contained Ideas Day, August 11, 2016, 10:00 accepted. Written requests for in the General Provisions regulations as a.m.–5:00 p.m. (EST) information or comments submitted by well as the specific program regulations postal mail or delivery should be for the Federal Perkins Loan program, The above-referenced meetings will addressed to the Director of the the Federal Work-Study program, and be held at: Colonnade Hotel, 120 Information Collection Clearance the Federal Supplemental Educational Huntington Ave., Boston, MA 02116. Further information may be found at Division, U.S. Department of Education, Opportunities Grant program. This 400 Maryland Avenue SW., LBJ, Room www.nepool.com. purpose of this submission is to renew The discussion at the meeting 2E–347, Washington, DC 20202–4537. this collection for the next three year described above may address matters at FOR FURTHER INFORMATION CONTACT: For period. The information collection issue in the following proceedings: specific questions related to collection requirements are necessary to determine Docket Nos. EL13–33 and EL 14–86, activities, please contact Beth eligibility to receive program benefits Environment Northeast et al. v. Grebeldinger, 202–377–4018. and to prevent fraud and abuse of Bangor Hydro-Electric Company et al. SUPPLEMENTARY INFORMATION: The program funds. Docket No. EL16–19, ISO New England Department of Education (ED), in Dated: August 8, 2016. Inc. Participating Transmission accordance with the Paperwork Kate Mullan, Owners Administrative Committee Reduction Act of 1995 (PRA) (44 U.S.C. Docket No. EL16–38, Dominion Energy 3506(c)(2)(A)), provides the general Acting Director, Information Collection Marketing, Inc. et al. v. ISO New public and Federal agencies with an Clearance Division, Office of the Chief Privacy England Inc. opportunity to comment on proposed, Officer, Office of Management. Docket No. EL16–93, NextEra Energy revised, and continuing collections of [FR Doc. 2016–19166 Filed 8–10–16; 8:45 am] Resources, LLC and PSEG Companies information. This helps the Department BILLING CODE 4000–01–P v. ISO New England Inc.
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Docket No. RP16–618, Algonquin Gas service to customers. Natural estimates the date of issuance of the Commission Transmission, LLC the cost of the project to be $268,000, all staff’s FEIS or EA. Docket No. ER12–1650, Emera Maine as more fully set forth in the application Persons who wish to comment only Docket No. ER14–1409, ISO-New which is on file with the Commission on the environmental review of this England Inc. and open to public inspection. The project should submit an original and Docket No. ER14–1639, ISO New filing may also be viewed on the web at two copies of their comments to the England Inc. and New England Power http://www.ferc.gov using the Secretary of the Commission. Pool Participants Committee ‘‘eLibrary’’ link. Enter the docket Environmental commenters will be Docket No. ER13–2266, ISO New number excluding the last three digits in placed on the Commission’s England Inc. the docket number field to access the environmental mailing list, will receive Docket No. ER15–1429, Emera Maine document. For assistance, please contact copies of the environmental documents, Docket No. ER16–551, ISO New England FERC Online Support at and will be notified of meetings Inc. [email protected] or toll associated with the Commission’s Docket No. ER16–1301, ISO New free at (866) 208–3676, or TTY, contact environmental review process. England Inc. and Emera Maine (202) 502–8659. Environmental commenters will not be Docket No. ER16–1041, ISO New Any questions concerning this required to serve copies of filed England Inc. application may be directed to Bruce H. documents on all other parties. Docket No. ER16–1904, ISO New Newsome, Vice President, Regulatory However, the non-party commenters, England Inc. Products and Services, Natural Gas will not receive copies of all documents Docket No. ER16–2126, ISO New Pipeline Company of America, LLC, filed by other parties or issued by the England Inc. and New England Power 3250 Lacey Road, Suite 700, Downers Commission (except for the mailing of Pool Participants Committee Drove, Illinois 60515–7918, by environmental documents issued by the Docket No. ER16–2215, ISO New telephone at (630) 725–3070, or by Commission) and will not have the right England Inc. email at bruce_newsome@ to seek court review of the Docket No. ER16–2283, Genbright LLC kindermorgan.com. Commission’s final order. For more information, contact Any person or the Commission’s staff The Commission strongly encourages Michael Cackoski, Office of Energy may, within 60 days after issuance of electronic filings of comments, protests Market Regulation, Federal Energy the instant notice by the Commission, and interventions in lieu of paper using Regulatory Commission at (202) 502– file pursuant to Rule 214 of the the ‘‘eFiling’’ link at http:// 6169 or [email protected]. Commission’s Procedural Rules (18 CFR www.ferc.gov. Persons unable to file Dated: August 4, 2016. 385.214) a motion to intervene or notice electronically should submit an original and seven copies of the protest or Nathaniel J. Davis, Sr., of intervention and pursuant to section intervention to the Federal Energy Deputy Secretary. 157.205 of the regulations under the NGA (18 CFR 157.205), a protest to the Regulatory Commission, 888 First Street [FR Doc. 2016–19068 Filed 8–10–16; 8:45 am] request. If no protest is filed within the NE., Washington, DC 20426. BILLING CODE 6717–01–P time allowed therefore, the proposed Dated: August 4, 2016. activity shall be deemed to be Nathaniel J. Davis, Sr., DEPARTMENT OF ENERGY authorized effective the day after the Deputy Secretary. time allowed for filing a protest. If a [FR Doc. 2016–19067 Filed 8–10–16; 8:45 am] protest is filed and not withdrawn Federal Energy Regulatory BILLING CODE 6717–01–P Commission within 30 days after the allowed time for filing a protest, the instant request [Docket No. CP16–485–000] shall be treated as an application for DEPARTMENT OF ENERGY Notice of Request Under Blanket authorization pursuant to section 7 of Authorization: Natural Gas Pipeline the NGA. Federal Energy Regulatory Company of America, LLC Pursuant to section 157.9 of the Commission Commission’s rules, 18 CFR 157.9, Take notice that on July 29, 2016, within 90 days of this Notice the [Project No. 14795–000] Natural Gas Pipeline Company of Commission staff will either: Complete Notice of Preliminary Permit America, LLC (Natural), 3250 Lacey its environmental assessment (EA) and Application Accepted for Filing and Road, Suite 700, Downers Grove, Illinois place it into the Commission’s public Soliciting Comments, Motions To 60515, filed in Docket No. CP16–485– record (eLibrary) for this proceeding, or Intervene, and Competing 000 a prior notice request pursuant to issue a Notice of Schedule for Applications; Shell Energy North sections 157.205 and 157.216 of the Environmental Review. If a Notice of America (US), L.P. Commission’s regulations under the Schedule for Environmental Review is Natural Gas Act (NGA), requesting issued, it will indicate, among other On July 26, 2016, Shell Energy North authorization to plug and abandon the milestones, the anticipated date for the America (US), L.P., filed an application Karcher 9 injection/withdrawal well Commission staff’s issuance of the final for a preliminary permit, pursuant to and abandon and remove related meter environmental impact statement (FEIS) section 4(f) of the Federal Power Act, and surface facilities as well as a related or EA for this proposal. The filing of the proposing to study the feasibility of the lateral and tap at Natural’s Herscher EA in the Commission’s public record Hydro Battery Pearl Hill Project (Pearl Galesville Storage Field located in for this proceeding or the issuance of a Hill Project or project) to be located on Kankakee County, Illinois. Natural Notice of Schedule for Environmental the Columbia River and Rufus Woods states that, as a result of the proposed Review will serve to notify federal and Lake, near Bridgeport, Douglas County, abandonment project, there will be no state agencies of the timing for the Washington. The sole purpose of a impact on the Herscher Galesville completion of all necessary reviews, and preliminary permit, if issued, is to grant Storage Field’s certificate parameters the subsequent need to complete all the permit holder priority to file a and that there will be no decrease in federal authorizations within 90 days of license application during the permit
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term. A preliminary permit does not (TTY). In lieu of electronic filing, please Procedure (18 CFR 385.211 and authorize the permit holder to perform send a paper copy to: Secretary, Federal 385.214). Protests will be considered by any land-disturbing activities or Energy Regulatory Commission, 888 the Commission in determining the otherwise enter upon lands or waters First Street NE., Washington, DC 20426. appropriate action to be taken, but will owned by others without the owners’ The first page of any filing should not serve to make protestants parties to express permission. include docket number P–14795–000. the proceeding. Any person wishing to The proposed pumped storage project More information about this project, become a party must file a notice of would consist of the following: (1) 215- including a copy of the application, can intervention, or motion to intervene, as foot-diameter, 40-foot-high corrugated be viewed or printed on the ‘‘eLibrary’’ appropriate. The Respondent’s answer steel tank (upper reservoir) having a link of Commission’s Web site at http:// and all interventions, or protests must total storage capacity of 29 acre-feet and www.ferc.gov/docs-filing/elibrary.asp. be filed on or before the comment date. a usable capacity of 26.7 acre-feet; (2) Enter the docket number (P–14795) in The Respondent’s answer, motions to 6,025-foot-long, 36-inch-diameter steel the docket number field to access the intervene, and protests must be served and high density polyethylene penstock document. For assistance, contact FERC on the Complainants. extending between the upper reservoir Online Support. The Commission encourages and the pump/turbines below; (3) 400- electronic submission of protests and foot-long, 100-foot-wide, 40-foot-deep Dated: August 4, 2016. Nathaniel J. Davis, Sr., interventions in lieu of paper using the polyurea membrane stretched over a ‘‘eFiling’’ link at http://www.ferc.gov. Deputy Secretary. framed plastic structure (lower Persons unable to file electronically reservoir) having a total storage capacity [FR Doc. 2016–19070 Filed 8–10–16; 8:45 am] should submit an original and 5 copies of 29 acre-feet and a usable capacity of BILLING CODE 6717–01–P of the protest or intervention to the 26.7 acre-feet; (4) 80-foot-long, 50-foot- Federal Energy Regulatory Commission, wide pontoon barge floating on Rufus 888 First Street NE., Washington, DC DEPARTMENT OF ENERGY Woods Lake containing: Two Pelton 20426. turbine-motor/generator units rated for This filing is accessible on-line at 2.5 megawatts each at 1,310 feet of net Federal Energy Regulatory Commission http://www.ferc.gov, using the head; up to 8 pumps; and a substation; ‘‘eLibrary’’ link and is available for (5) an overhead 2,500-foot-long, 24.9- [Docket No. EL16–104–000] review in the Commission’s Public kilovolt transmission line extending Reference Room in Washington, DC HORUS Central Valley Solar 1, LLC, from the project substation to an There is an ‘‘eSubscription’’ link on the HORUS Central Valley Solar 2, LLC v. existing distribution line owned by Web site that enables subscribers to California Independent System Douglas County Public Utility District receive email notification when a Operator Corporation; Notice of (the point of interconnection); and (6) document is added to a subscribed Complaint appurtenant facilities. The estimated docket(s). For assistance with any FERC annual generation of the Pearl Hill Take notice that on July 29, 2016, Online Service, please email Project would be 10.9 gigawatt-hours. [email protected], or call Applicant Contact: Mr. Brian pursuant to sections 206 and 306 of the (866) 208–3676 (toll free). For TTY, call Johansen, Vice President Power Trading Federal Power Act, 16 U.S.C. 824e and (202) 502–8659. West, Shell Energy North America (US), 825e and Rule 206 of the Federal Energy L.P., 601 W. 1st Ave., Suite 1700, Regulatory Commission‘s (Commission) Comment Date: 5:00 p.m. Eastern Spokane, Washington 99201; phone: Rules of Practice and Procedure 18 CFR Time on August 18, 2016. (509) 688–6000. 385.206, HORUS Central Valley Solar 1, Dated: August 1, 2016. FERC Contact: Ryan Hansen, email: LLC and HORUS Central Valley Solar 2, Nathaniel J. Davis, Sr., [email protected]; phone: (202) LLC (collectively, HORUS), filed a Deputy Secretary. formal complaint against California 502–8074. [FR Doc. 2016–19079 Filed 8–10–16; 8:45 am] Deadline for filing comments, motions Independent System Operator BILLING CODE 6717–01–P to intervene, competing applications Corporation (Respondent or CAISO) (without notices of intent), or notices of alleging violation of the CAISO Open intent to file competing applications: 60 Access Transmission Tariff and DEPARTMENT OF ENERGY days from the issuance of this notice. requesting that the Commission (1) Competing applications and notices of direct the CAISO to stop interfering Federal Energy Regulatory intent must meet the requirements of 18 with HORUS’ compliance with the Commission CFR 4.36. interconnection procedures of Western The Commission strongly encourages Area Power Administration (Western) Combined Notice of Filings #1 electronic filing. Please file comments, for its direct interconnection with motions to intervene, notices of intent, Western as an energy-only resource, and Take notice that the Commission and competing applications using the (2) stop CAISO from requiring HORUS received the following electric rate Commission’s eFiling system at http:// to go through a second set of filings: www.ferc.gov/docs-filing/efiling.asp. interconnection procedures and studies Docket Numbers: ER16–13–003. Commenters can submit brief comments under the CAISO tariff even though Applicants: Southwest Power Pool, up to 6,000 characters, without prior HORUS is an energy-only resource and Inc. registration, using the eComment system Western is a non-participating Description: Compliance filing: at http://www.ferc.gov/docs-filing/ transmission owner under the CAISO Compliance Filing in ER16–13— ecomment.asp. You must include your tariff for the HORUS project, as more Revisions to Att AE re Annual ARR name and contact information at the end fully explained in the complaint. Allocation to be effective 1/28/2016. of your comments. For assistance, Any person desiring to intervene or to Filed Date: 8/4/16. please contact FERC Online Support at protest this filing must file in Accession Number: 20160804–5119. [email protected], (866) accordance with Rules 211 and 214 of Comments Due: 5 p.m. ET 8/25/16. 208–3676 (toll free), or (202) 502–8659 the Commission’s Rules of Practice and Docket Numbers: ER16–1649–004.
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Applicants: California Independent Description: § 205(d) Rate Filing: The filings are accessible in the System Operator Corporation. 20160802_IA-Migration compliance to Commission’s eLibrary system by Description: Motion for Clarification be effective 4/16/2016. clicking on the links or querying the or, in the Alternative, Petition for Filed Date: 8/3/16. docket number. Limited Waiver of the California Accession Number: 20160803–5155. Any person desiring to intervene or Independent System Operator Comments Due: 5 p.m. ET 8/24/16. protest in any of the above proceedings Corporation. Docket Numbers: ER16–2372–000. must file in accordance with Rules 211 Filed Date: 8/3/16. Applicants: ITC Midwest LLC. and 214 of the Commission’s Accession Number: 20160803–5173. Description: § 205(d) Rate Filing: Comments Due: 5 p.m. ET 8/24/16. Regulations (18 CFR 385.211 and Filing of Master Joint Use Pole 385.214) on or before 5:00 p.m. Eastern Docket Numbers: ER16–1791–002. Agreement to be effective 10/4/2016. time on the specified comment date. Applicants: PJM Interconnection, Filed Date: 8/4/16. Protests may be considered, but L.L.C. Accession Number: 20160804–5061. Description: Tariff Amendment: intervention is necessary to become a Comments Due: 5 p.m. ET 8/25/16. party to the proceeding. Amendment to Filing of Revisions to Docket Numbers: ER16–2373–000. MISO–PJM JOA re CMP–ICP Baseline to Applicants: Midcontinent eFiling is encouraged. More detailed be effective 7/25/2016. Independent System Operator, Inc., information relating to filing Filed Date: 8/4/16. Ameren Illinois Company. requirements, interventions, protests, Accession Number: 20160804–5110. Description: § 205(d) Rate Filing: service, and qualifying facilities filings Comments Due: 5 p.m. ET 8/25/16. 2016–08–04_SA 2722 Notice of can be found at: http://www.ferc.gov/ Docket Numbers: ER16–2019–001. Cancellation of Ameren-Dynegy CA docs-filing/efiling/filing-req.pdf. For Applicants: Five Points Solar Park (Baldwin) to be effective 8/5/2016. other information, call (866) 208–3676 LLC. Filed Date: 8/4/16. (toll free). For TTY, call (202) 502–8659. Description: Tariff Amendment: Accession Number: 20160804–5073. Dated: August 4, 2016. Change of Proposed Effective Date for Comments Due: 5 p.m. ET 8/25/16. Pending Market-Based Rate Tariff to be Nathaniel J. Davis, Sr., Docket Numbers: ER16–2374–000. effective 8/9/2016. Deputy Secretary. Applicants: Midcontinent Filed Date: 8/4/16. [FR Doc. 2016–19066 Filed 8–10–16; 8:45 am] Independent System Operator, Inc. Accession Number: 20160804–5084. BILLING CODE 6717–01–P Comments Due: 5 p.m. ET 8/25/16. Description: Compliance filing: 2016– 08–04_Order 827 Compliance Docket Numbers: ER16–2322–001. (Attachment X) Filing to be effective Applicants: Southwest Power Pool, DEPARTMENT OF ENERGY 9/21/2016. Inc. Filed Date: 8/4/16. Description: Tariff Amendment: Federal Energy Regulatory Accession Number: 20160804–5075. 1518R11 Arkansas Electric Cooperative Commission Comments Due: 5 p.m. ET 8/25/16. Corp NITSA NOA to be effective 7/1/2016. Docket Numbers: ER16–2375–000. [Docket No. CP15–558–000] Filed Date: 8/4/16. Applicants: Pacific Gas and Electric Accession Number: 20160804–5033. Company. PennEast Pipeline Company, LLC; Comments Due: 5 p.m. ET 8/25/16. Description: § 205(d) Rate Filing: E&P Notice of Public Comment Meeting Docket Numbers: ER16–2369–000. Agreement for RE Mustang Two LLC to Location Change for the Proposed Applicants: Central Maine Power be effective 8/5/2016. Penneast Pipeline Project Company. Filed Date: 8/4/16. Description: § 205(d) Rate Filing: Accession Number: 20160804–5083. The staff of the Federal Energy Executed Engineering and Procurement Comments Due: 5 p.m. ET 8/25/16. Regulatory Commission is providing Agreement with FPL Energy Wyman Docket Numbers: ER16–2376–000. this notice of a change in the location LLC to be effective 7/25/2016. Applicants: FPL Energy Marcus Hook, of public comment meetings for the Filed Date: 8/3/16. L.P. PennEast Pipeline Project. Since Accession Number: 20160803–5146. Description: Compliance filing: issuance of the Notice of Availability of Comments Due: 5 p.m. ET 8/24/16. Informational Filing, Submission of the Draft Environmental Impact Docket Numbers: ER16–2370–000. Tariff Record, and Request for Waiver to Statement for the Proposed PennEast Applicants: Freepoint Energy be effective 8/5/2016. Pipeline Project on July 22, 2016, the Solutions LLC. Filed Date: 8/4/16. Commission staff was notified that The Description: Baseline eTariff Filing: Accession Number: 20160804–5098. Grand Colonial in Hampton, New Jersey MBR Application to be effective Comments Due: 5 p.m. ET 8/25/16. and the Clifford B. Martin Memorial 10/3/2016. Docket Numbers: ER16–2377–000. Hall in Ewing, New Jersey are no longer Filed Date: 8/3/16. Applicants: FPL Energy MH50, L.P. available for the public comment Accession Number: 20160803–5149. Description: Compliance filing: meetings previously scheduled for Comments Due: 5 p.m. ET 8/24/16. Informational Filing, Submission of August 16 and 17, 2016, respectively. Docket Numbers: ER16–2371–000. Tariff Record, and Request for Waiver to Please take note that the public Applicants: Northern States Power be effective 8/5/2016. comment meetings are now scheduled Company, a Minnesota corporation, Filed Date: 8/4/16. at the following alternative locations at Northern States Power Company, a Accession Number: 20160804–5099. the same date and time as previously Wisconsin corporation. Comments Due: 5 p.m. ET 8/25/16. scheduled.
Date and time Location
Tuesday, August 16, 2016, 6–10 p.m ...... Holiday Inn Clinton-Bridgewater, Hunterdon Ballroom, 111 W Main Street, Clinton, NJ 08809, Phone: (908) 735–5111.
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Date and time Location
Wednesday, August 17, 2016, 6–10 p.m ...... Patriots Theater at War Memorial, George Washington Ballroom, 1 Memorial Drive, Trenton, NJ 08608, Phone: (609) 984–8484.
All other public comment meetings No. PF16–7–000 to ensure they are clicking on ‘‘eRegister.’’ If you are filing will be held as listed in the Notice of considered as part of this proceeding. a comment on a particular project, Availability issued on July 22, 2016. This notice is being sent to the please select ‘‘Comment on a Filing’’ as Dated: August 5, 2016. Commission’s current environmental the filing type; or mailing list for this project. State and (3) You can file a paper copy of your Nathaniel J. Davis, Sr., local government representatives should comments by mailing them to the Deputy Secretary. notify their constituents of this planned following address. Be sure to reference [FR Doc. 2016–19072 Filed 8–10–16; 8:45 am] project and encourage them to comment the project docket number (PF16–7–000) BILLING CODE 6717–01–P on their areas of concern. with your submission: Kimberly D. If you are a landowner receiving this Bose, Secretary, Federal Energy notice, a pipeline company Regulatory Commission, 888 First Street DEPARTMENT OF ENERGY representative may contact you about NE., Room 1A, Washington, DC 20426. the acquisition of an easement to Federal Energy Regulatory construct, operate, and maintain the Summary of the Planned Project Commission planned facilities. The company would Eastern Shore plans to construct new [Docket No. PF16–7–000] seek to negotiate a mutually acceptable pipeline and appurtenant aboveground agreement. However, if the Commission facilities in the states of Pennsylvania, Eastern Shore Natural Gas Company; approves the project, that approval Maryland, and Delaware. The 2017 Notice of Intent To Prepare an conveys with it the right of eminent Expansion Project facilities consist of (1) Environmental Assessment for the domain. Therefore, if easement approximately 30 miles of pipeline Planned 2017 Expansion Project and negotiations fail to produce an looping in Pennsylvania, Maryland and Request for Comments on agreement, the pipeline company could Delaware; (2) upgrades to existing Environmental Issues initiate condemnation proceedings metering facilities; (3) installation of an where compensation would be additional 3,550 horsepower (‘‘hp’’) The staff of the Federal Energy determined in accordance with state compressor unit at the existing Daleville Regulatory Commission (FERC or law. Compressor Station; and (4) Commission) will prepare an A fact sheet prepared by the FERC approximately 17 miles of new mainline environmental assessment (EA) that will entitled ‘‘An Interstate Natural Gas extension and the addition of two discuss the environmental impacts of Facility On My Land? What Do I Need pressure control stations in Sussex the 2017 Expansion Project involving To Know?’’ is available for viewing on County, Delaware. construction and operation of facilities the FERC Web site (www.ferc.gov). This The 2017 Expansion Project consists by Eastern Shore Natural Gas Company fact sheet addresses a number of of the following components, listed (Eastern Shore) in Lancaster and Chester typically asked questions, including the below by geographic area: Counties, Pennsylvania; Cecil County, use of eminent domain and how to Pennsylvania Maryland; and New Castle, Kent, and participate in the Commission’s Sussex Counties, Delaware. The proceedings. Lancaster County Commission will use this EA in its Honey Brook Meter and Regulator decision-making process to determine Public Participation Station: Replace existing meter runs and whether the project is in the public For your convenience, there are three pressure/flow control valves at the convenience and necessity. methods you can use to submit your existing interconnect site with Texas This notice announces the opening of comments to the Commission. The Eastern Transmission, LP (‘‘Texas the scoping process the Commission Commission encourages electronic filing Eastern’’). Modify the existing Honey will use to gather input from the public of comments and has expert staff Brook Meter and Regulator Station and and interested agencies on the project. available to assist you at (202) 502–8258 lateral piping to accommodate the You can make a difference by providing or [email protected]. Please carefully installation of upsized mainline taps us with your specific comments or follow these instructions so that your and valves and the installation of a filter concerns about the project. Your comments are properly recorded. separator, associated piping, and storage comments should focus on the potential (1) You can file your comments tank as well as other ancillary environmental effects, reasonable electronically using the eComment equipment at Eastern Shore’s existing alternatives, and measures to avoid or feature on the Commission’s Web site interconnect with Texas Eastern. All lessen environmental impacts. Your (www.ferc.gov) under the link to construction work would be conducted input will help the Commission staff Documents and Filings. This is an easy within the fenceline in previously determine what issues they need to method for submitting brief, text-only disturbed areas of the existing evaluate in the EA. To ensure that your comments on a project; interconnect site. comments are timely and properly (2) You can file your comments recorded, please send your comments so electronically by using the eFiling Chester County that the Commission receives them in feature on the Commission’s Web site Parkesburg Loop: Construct Washington, DC, on or before August (www.ferc.gov) under the link to approximately 5 miles of 16-inch- 31, 2016. Documents and Filings. With eFiling, diameter pipeline loop 1 beginning at If you sent comments on this project you can provide comments in a variety Eastern Shore’s existing Parkesburg to the Commission before the opening of of formats by attaching them as a file this docket on May 17, 2016, you will with your submission. New eFiling 1 A pipeline loop is a segment of pipe constructed need to file those comments in Docket users must first create an account by parallel to an existing pipeline to increase capacity.
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Meter and Regulator Station southward southward to connect with Eastern available in the public record through to Lime Stone Road (PA–10). Shore’s existing pipeline. eLibrary. Depending on the comments Jennersville Loop: Construct Pressure Control Stations: Construct received during the scoping process, we approximately 7 miles of 24-inch- two pressure control stations located may also publish and distribute the EA diameter pipeline loop beginning at near the towns of Millsboro and Delmar. to the public for an allotted comment Eastern Shore’s existing Daleville Please see appendix A for a map period. We will consider all comments Compressor Station southward to Hess depicting the general locations of the on the EA before we make our Mill Road. planned 2017 Expansion Project recommendations to the Commission. Daleville Compressor Station facilities. To ensure we have the opportunity to consider and address your comments, Upgrade: Install a new 3,550 hp gas- The EA Process fired compressor unit at the existing please carefully follow the instructions Daleville Compressor Station. The National Environmental Policy in the Public Participation section, Act (NEPA) requires the Commission to beginning on page 2. Maryland take into account the environmental With this notice, we are asking Cecil County impacts that could result from an action agencies with jurisdiction by law and/ whenever it considers the issuance of a or special expertise with respect to the Fair Hill Loop: Construct Certificate of Public Convenience and environmental issues related to this approximately 6.3 miles of 24-inch- Necessity. NEPA also requires us 2 to project to formally cooperate with us in diameter pipeline loop beginning at discover and address concerns the the preparation of the EA.3 Agencies Eastern Shore’s existing block valve on public may have about proposals. This that would like to request cooperating Walker Road in Chester County, process is referred to as scoping. The agency status should follow the Pennsylvania southward to Cecil main goal of the scoping process is to instructions for filing comments County, Maryland to tie into the existing focus the analysis in the EA on the provided under the Public Participation Eastern Shore pipeline north of Route 2 important environmental issues. By this section of this notice. near the Maryland/Delaware state line. notice, the Commission requests public Consultations Under Section 106 of the Delaware comments on the scope of the issues to National Historic Preservation Act address in the EA. We will consider all New Castle County filed comments during the preparation In accordance with the Advisory of the EA. Council on Historic Preservation’s Middletown Loop: Construct implementing regulations for section approximately 1 mile of 10-inch- In the EA we will discuss impacts that could occur as a result of the 106 of the National Historic diameter pipeline loop beginning on Preservation Act, we are using this Peterson Road and extending to a construction and operation of the planned project under these general notice to initiate consultation with the location southeastern of Industrial Road. applicable State Historic Preservation Construct approximately 0.65 mile of 6- headings: • Office(s), and to solicit their views and inch-diameter pipeline lateral and meter Geology and soils; • those of other government agencies, station from Industrial Road towards land use; • interested Indian tribes, and the public Auto Park Drive. water resources, fisheries, and wetlands; on the project’s potential effects on Summit Loop: Construct 4 • cultural resources; historic properties. We will define the approximately 0.5 mile of 10-inch- • project-specific Area of Potential Effects diameter pipeline loop starting along vegetation and wildlife; • air quality and noise; (APE) in consultation with the SHPO(s) the south side of C&D Canal at Eastern • as the project develops. On natural gas Shore’s existing 12- inch aerial crossing endangered and threatened species; • public safety; and facility projects, the APE at a minimum southward to tie into the existing • cumulative impacts. encompasses all areas subject to ground Eastern Shore pipeline. We will also evaluate possible disturbance (examples include Kent County alternatives to the planned project or construction right-of-way, contractor/ portions of the project, and make pipe storage yards, compressor stations, Woodside Loop: Construct and access roads). Our EA for this approximately 5 miles of 16-inch- recommendations on how to lessen or avoid impacts on the various resource project will document our findings on diameter pipeline loop beginning in the impacts on historic properties and Wyoming, Delaware southward to Viola, areas. Although no formal application has summarize the status of consultations Delaware. been filed, we have already initiated our under section 106. Sussex County NEPA review under the Commission’s Environmental Mailing List pre-filing process. The purpose of the Hearns Pond Loop: Construct The environmental mailing list pre-filing process is to encourage early approximately 1.5 miles of 10-inch- includes federal, state, and local involvement of interested stakeholders diameter pipeline loop along U.S. 13 government representatives and and to identify and resolve issues before near Seaford southward to Eastern agencies; elected officials; the FERC receives an application. As Shore’s existing Seaford Pressure environmental and public interest Control Station. part of our pre-filing review, we have begun to contact some federal and state Seaford to Millsboro Segment: 3 The Council on Environmental Quality agencies to discuss their involvement in Construct approximately 17.0 miles of regulations addressing cooperating agency the scoping process and the preparation responsibilities are at Title 40, Code of Federal 10-inch-diameter pipeline extension of the EA. Regulations, Part 1501.6. from Seaford eastward to Eastern 4 The EA will present our independent The Advisory Council on Historic Preservation Shore’s existing Millsboro Meter & analysis of the issues. The EA will be regulations are at Title 36, Code of Federal Regulator Station near Millsboro. Regulations, Part 800. Those regulations define historic properties as any prehistoric or historic Laurel Loop: Construct approximately 2 ‘‘We,’’ ‘‘us,’’ and ‘‘our’’ refer to the district, site, building, structure, or object included 5.1 miles of 10-inch-diameter pipeline environmental staff of the Commission’s Office of in or eligible for inclusion in the National Register loop along U.S. 13 near Laurel Energy Projects. of Historic Places.
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groups; Native American Tribes; other at (866) 208–3676, or for TTY, contact The above-referenced meeting is open interested parties; and local libraries (202) 502–8659. The eLibrary link also to stakeholders. and newspapers. This list also includes provides access to the texts of formal Further information may be found at: all affected landowners (as defined in documents issued by the Commission, http://www.nyiso.com/public/ the Commission’s regulations) who are such as orders, notices, and committees/documents.jsp? potential right-of-way grantors, whose rulemakings. com=bic&directory=2016-08-17. property may be used temporarily for In addition, the Commission offers a The New York Independent System project purposes, or who own homes free service called eSubscription which Operator, Inc. Operating Committee within certain distances of aboveground allows you to keep track of all formal Meeting facilities, and anyone who submits issuances and submittals in specific comments on the project. We will dockets. This can reduce the amount of August 18, 2016, 10:00 a.m.–4:00 p.m. update the environmental mailing list as time you spend researching proceedings (EST) the analysis proceeds to ensure that we by automatically providing you with The above-referenced meeting will be send the information related to this notification of these filings, document via web conference and teleconference. environmental review to all individuals, summaries, and direct links to the The above-referenced meeting is open organizations, and government entities documents. Go to www.ferc.gov/docs- to stakeholders. interested in and/or potentially affected filing/esubscription.asp. Further information may be found at: by the planned project. Finally, public meetings or site visits http://www.nyiso.com/public/ If we publish and distribute the EA, will be posted on the Commission’s committees/documents.jsp?com=oc copies of the EA will be sent to the calendar located at www.ferc.gov/ &directory=2016-08-18. environmental mailing list for public EventCalendar/EventsList.aspx along review and comment. If you would The New York Independent System with other related information. prefer to receive a paper copy of the Operator, Inc. Joint Electric System document instead of the CD version or Dated: August 1, 2016. Planning Working Group and would like to remove your name from Nathaniel J. Davis, Sr., Transmission Planning Advisory the mailing list, please return the Deputy Secretary. Subcommittee Meeting attached Information Request (appendix [FR Doc. 2016–19082 Filed 8–10–16; 8:45 am] August 25, 2016, 10:00 a.m.–4:00 p.m. B). BILLING CODE 6717–01–P (EST) Becoming an Intervenor The above-referenced meeting will be Once Eastern Shore files its DEPARTMENT OF ENERGY via web conference and teleconference. application with the Commission, you The above-referenced meeting is open may want to become an ‘‘intervenor’’ Federal Energy Regulatory to stakeholders. which is an official party to the Commission Further information may be found at: Commission’s proceeding. Intervenors http://www.nyiso.com/public/ play a more formal role in the process Notice of Commission Staff committees/documents.jsp?com=bic_ and are able to file briefs, appear at Attendance espwg&directory=2016-08-25. hearings, and be heard by the courts if The New York Independent System they choose to appeal the Commission’s The Federal Energy Regulatory Commission (Commission) hereby gives Operator, Inc. Management Committee final ruling. An intervenor formally Meeting participates in the proceeding by filing notice that members of the a request to intervene. Motions to Commission’s staff may attend the August 31, 2016, 10:00 a.m.–4:00 p.m. intervene are more fully described at following meetings related to the (EST) transmission planning activities of the http://www.ferc.gov/resources/guides/ The above-referenced meeting will be how-to/intervene.asp. Instructions for New York Independent System Operator, Inc. via web conference and teleconference. becoming an intervenor are in the The above-referenced meeting is open ‘‘Document-less Intervention Guide’’ The New York Independent System to stakeholders. under the ‘‘e-filing’’ link on the Operator, Inc. Electric System Planning Further information may be found at: Commission’s Web site. Please note that Working Group Meeting http://www.nyiso.com/public/ the Commission will not accept requests committees/documents.jsp?com= August 9, 2016, 10:00 a.m.–4:00 p.m. for intervenor status at this time. You mc&directory=2016-08-31. must wait until the Commission (EST) The discussions at the meetings receives a formal application for the The above-referenced meeting will be described above may address matters at project. via web conference and teleconference. issue in the following proceedings: Additional Information The above-referenced meeting is open New York Independent System to stakeholders. Operator, Inc., Docket No. ER13–102. Additional information about the Further information may be found at: New York Independent System project is available from the http://www.nyiso.com/public/ Operator, Inc., Docket No. ER15– Commission’s Office of External Affairs, committees/documents.jsp?com=bic_ 2059. at (866) 208–FERC, or on the FERC Web espwg&directory=2016-08-09. New York Independent System site (www.ferc.gov) using the eLibrary Operator, Inc., Docket No. ER13– link. Click on the eLibrary link, click on The New York Independent System 1942. ‘‘General Search’’ and enter the docket Operator, Inc. Business Issues New York Transco, LLC, Docket No. number, excluding the last three digits Committee Meeting ER15–572. in the Docket Number field (i.e., PF16– August 17, 2016, 10:00 a.m.–4:00 p.m. New York Independent System 7). Be sure you have selected an (EST) Operator, Inc., Docket No. ER16–966. appropriate date range. For assistance, New York Independent System please contact FERC Online Support at The above-referenced meeting will be Operator, Inc., Docket No. ER16– [email protected] or toll free via web conference and teleconference. 1968.
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Boundless Energy NE., LLC, CityGreen Any person or the Commission’s staff to seek court review of the Transmission, Inc., and Miller Bros. v. may, within 60 days after the issuance Commission’s final order. New York Independent System of the instant notice by the Commission, The Commission strongly encourages Operator, Inc., Docket No. EL16–84. file pursuant to Rule 214 of the electronic filings of comments, protests, New York Independent System Commission’s Procedural Rules (18 CFR and interventions via the internet in lieu Operator, Inc., Docket No. ER16– 385.214) a motion to intervene or notice of paper. See 18 CFR 385.2001(a)(1)(iii) 1785. of intervention. Any person filing to and the instructions on the For more information, contact James intervene or the Commission’s staff Commission’s Web site (www.ferc.gov) Eason, Office of Energy Market may, pursuant to section 157.205 of the under the ‘‘e-Filing’’ link. Persons Regulation, Federal Energy Regulatory Commission’s Regulations under the unable to file electronically should Commission at (202) 502–8622 or NGA (18 CFR 157.205) file a protest to submit original and 5 copies of the [email protected]. the request. If no protest is filed within protest or intervention to the Federal Dated: August 4, 2016. the time allowed therefore, the proposed Energy Regulatory Commission, 888 activity shall be deemed to be First Street NE., Washington, DC 20426. Nathaniel J. Davis, Sr., authorized effective the day after the Deputy Secretary. Dated: August 1, 2016. time allowed for protest. If a protest is Nathaniel J. Davis, Sr., [FR Doc. 2016–19075 Filed 8–10–16; 8:45 am] filed and not withdrawn within 30 days Deputy Secretary. BILLING CODE 6717–01–P after the time allowed for filing a protest, the instant request shall be [FR Doc. 2016–19077 Filed 8–10–16; 8:45 am] treated as an application for BILLING CODE 6717–01–P DEPARTMENT OF ENERGY authorization pursuant to section 7 of the NGA. Federal Energy Regulatory DEPARTMENT OF ENERGY Commission Pursuant to section 157.9 of the Commission’s rules, 18 CFR 157.9, Federal Energy Regulatory [Docket No. CP16–484–000] within 90 days of this Notice the Commission Commission staff will either: Complete El Paso Natural Gas Company, L.L.C.; its environmental assessment (EA) and [Project No. 2197–109] Notice of Request Under Blanket place it into the Commission’s public Authorization Alcoa Power Generating Inc., Cube record (eLibrary) for this proceeding; or Yadkin Generation LLC; Notice of issue a Notice of Schedule for Take notice that on July 21, 2016, El Application for Transfer of License and Environmental Review. If a Notice of Paso Natural Gas Company, L.L.C. Soliciting Comments, Motions To Schedule for Environmental Review is (EPNG), Post Office Box 1087, Colorado Intervene, and Protests Springs, Colorado 80944 filed a prior issued, it will indicate, among other notice request pursuant to sections milestones, the anticipated date for the On July 25, 2016, Alcoa Power 157.205 and 157.208(f) of the Commission staff’s issuance of the final Generating Inc. (transferor) and Cube Commission’s regulations under the environmental impact statement (FEIS) Yadkin Generation LLC (transferee) filed Natural Gas Act for authorization to or EA for this proposal. The filing of the an application for the transfer of license decrease the Maximum Allowable EA in the Commission’s public record of the Yadkin Hydroelectric Project No. Operating Pressure (MAOP) of a for this proceeding or the issuance of a 2197. The project is located on the segment of its 6-inch O.D. Hayden Line Notice of Schedule for Environmental Yadkin River in Stanly, Montgomery, (Line No. 2023) located in Gila County, Review will serve to notify federal and Davidson, and Rowan counties, North Arizona. EPNG proposes to decrease the state agencies of the timing for the Carolina. The project does not occupy MAOP of this section of Line No. 2023 completion of all necessary reviews, and federal lands. from 474 pounds per square inch gauge the subsequent need to complete all The applicants seek Commission (psig) down to 85 psig to align the federal authorizations within 90 days of approval to transfer the license for the MAOP with the existing operations of the date of issuance of the Commission Yadkin Hydroelectric Project from the Line No. 2023. The proposed MAOP staff’s FEIS or EA. transferor to the transferee. reduction will not alter the capacity of Persons who wish to comment only Applicants Contact: For transferor: EPNG’s system, all as more fully set on the environmental review of this Ms. Coralyn M. Benhart, Esq., Alcoa forth in the application which is on file project should submit an original and Inc., 201 Isabella Street, 6E04, with the Commission and open to two copies of their comments to the Pittsburgh, PA 15212–5858, Phone: public inspection. The filing may also Secretary of the Commission. 412–553–4237, Email: be viewed on the web at http:// Environmental commenter’s will be [email protected] and Mr. www.ferc.gov using the ‘‘eLibrary’’ link. placed on the Commission’s David R. Poe, Bracewell LLP, 2001 M Enter the docket number excluding the environmental mailing list, will receive Street NW., Suite 900, Washington, DC last three digits in the docket number copies of the environmental documents, 20036, Phone: 202–828–5800, Email: field to access the document. For and will be notified of meetings [email protected]. For assistance, contact FERC at associated with he Commission’s Transferee: Mr. Eli W.L. Hopson, Cube [email protected] or call environmental review process. Hydro Partners, LLC, 2 Bethesda Metro toll-free, (866) 208–3676 or TTY, (202) Environmental commenter’s will not be Center, Suite 1330, Bethesda, MD 502–8659. required to serve copies of filed 20814, Phone: 240–482–2714, Email: Any questions regarding this documents on all other parties. [email protected] and Ms. Julia Application should be directed to However, the non-party commentary, S. Wood and Ms. Sharon L. White, Van Francisco Tarin, Director Regulatory will not receive copies of all documents Ness Feldman, LLP, 1050 Thomas Department, El Paso Natural Gas filed by other parties or issued by the Jefferson Street NW., Seventh Floor, Company, L.L.C., Post Office Box 1087, Commission (except for the mailing of Washington, DC 20007, Phone: 202– Colorado Springs, Colorado 80944, or by environmental documents issued by the 298–1800, Email: [email protected] and slw@ calling (719) 667–7517. Commission) and will not have the right vnf.com.
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FERC Contact: Patricia W. Gillis, (202) i. FERC Contact: Mr. Ashish Desai, document. You may also register online 502–8735, [email protected]. (202) 502–8370, [email protected]. at http://www.ferc.gov/docs-filing/ Deadline for filing comments, motions j. Deadline for filing comments, esubscription.asp to be notified via to intervene, and protests: 30 days from motions to intervene, and protests, is 15 email of new filings and issuances the date that the Commission issues this days from the issuance date of this related to this or other pending projects. notice. The Commission strongly notice by the Commission. All For assistance, call 1–866–208–3676 or encourages electronic filing. Please file documents may be filed electronically email [email protected], for comments, motions to intervene, and via the Internet. See, 18 CFR TTY, call (202) 502–8659. A copy is also protests using the Commission’s eFiling 385.2001(a)(1)(iii) and the instructions available for inspection and system at http://www.ferc.gov/docs- on the Commission’s Web site at http:// reproduction at the address in item (h) filing/efiling.asp. Commenters can www.ferc.gov/docs-filing/efiling.asp. If above. submit brief comments up to 6,000 unable to be filed electronically, m. Individuals desiring to be included characters, without prior registration, documents may be paper-filed. To on the Commission’s mailing list should using the eComment system at http:// paper-file, an original and seven copies so indicate by writing to the Secretary www.ferc.gov/docs-filing/ should be mailed to: Secretary, Federal of the Commission. ecomment.asp. You must include your Energy Regulatory Commission, 888 n. Comments, Protests, or Motions to name and contact information at the end First Street NE., Washington, DC 20426. Intervene: Anyone may submit of your comments. For assistance, Commenters can submit brief comments comments, a protest, or a motion to please contact FERC Online Support at up to 6,000 characters, without prior intervene in accordance with the [email protected], (866) registration, using the eComment system requirements of Rules of Practice and 208–3676 (toll free), or (202) 502–8659 at http://www.ferc.gov/docs-filing/ Procedure, 18 CFR 385.210, .211, .214. (TTY). In lieu of electronic filing, please ecomment.asp. You must include your In determining the appropriate action to send a paper copy to: Secretary, Federal name and contact information at the end take, the Commission will consider all Energy Regulatory Commission, 888 of your comments. Please include the protests or other comments filed, but First Street NE., Washington, DC 20426. project number (P–2212–049) on any only those who file a motion to The first page of any filing should comments, motions, or intervene in accordance with the include docket number P–2197–109. recommendations filed. Commission’s Rules may become a k. Description of Request: The party to the proceeding. Any comments, Dated: August 1, 2016. licensee filed a reservoir drawdown protests, or motions to intervene must Nathaniel J. Davis, Sr., plan for Commission approval as be received on or before the specified Deputy Secretary. required by Article 404 of the project comment date for the particular [FR Doc. 2016–19081 Filed 8–10–16; 8:45 am] license and is requesting a temporary application. BILLING CODE 6717–01–P variance to the reservoir elevation range o. Filing and Service of Responsive required by Article 402 for Lake Documents: Any filing must (1) bear in Wausau. Article 402 requires the all capital letters the title DEPARTMENT OF ENERGY licensee to maintain the reservoir ‘‘COMMENTS’’, ‘‘PROTEST’’, or surface elevation of Lake Wausau ‘‘MOTION TO INTERVENE’’ as Federal Energy Regulatory between 1160.6 feet and 1160.8 feet applicable; (2) set forth in the heading Commission National Geodetic Vertical Datum. The the name of the applicant and the [Project No. 2212–049] licensee is proposing the drawdown to project number of the application to complete concrete repair and which the filing responds; (3) furnish Notice of Application for Temporary maintenance on the dam at the the name, address, and telephone Variance and Soliciting Comments, waterline. According to the licensee’s number of the person protesting or Motions To Intervene, and Protests: plan, the licensee would drawdown the intervening; and (4) otherwise comply Domtar Paper Company, LLC project reservoir starting no earlier than with the requirements of 18 CFR September 12, 2016 at a maximum daily 385.2001 through 385.2005. All Take notice that the following rate of less than 4 inches per day. The comments, motions to intervene, or hydroelectric application has been filed drawdown would be completed no later protests must set forth their evidentiary with the Commission and is available than October 1, 2016, and the basis and otherwise comply with the for public inspection: drawdown depth would not exceed 5 requirements of 18 CFR 4.34(b). All a. Types of Application: Temporary feet below the 1160.6-foot minimum comments, motions to intervene, or Variance from license Article 402 and elevation required by Article 402. The protests should relate to project works Reservoir Drawdown Plan for Article licensee proposes to begin refilling the which are the subject of this 404. reservoir no later than November 15, application. Agencies may obtain copies b. Project No.: P–2212–049. 2016 and would complete refilling to of the application directly from the c. Date Filed: June 10, 2016. meet the minimum reservoir surface applicant. A copy of any protest or d. Applicants: Domtar Paper elevation by November 20, 2016. motion to intervene must be served Company, LLC. l. Locations of the Application: A upon each representative of the e. Name of Projects: Rothschild copy of the application is available for applicant specified in the particular Hydroelectric Project. inspection and reproduction at the application. If an intervener files f. Location: The project is located on Commission’s Public Reference Room, comments or documents with the the Wisconsin River, in Marathon located at 888 First Street NE., Room Commission relating to the merits of an County, Wisconsin. 2A, Washington, DC 20426, or by calling issue that may affect the responsibilities g. Filed Pursuant to: Federal Power (202) 502–8371. This filing may also be of a particular resource agency, they Act, 16 U.S.C. 791a–825r. viewed on the Commission’s Web site at must also serve a copy of the document h. Applicant Contact: Mr. Steve http://www.ferc.gov/docs-filing/ on that resource agency. A copy of all Lewens, Domtar Paper Company, LLC, elibrary.asp. Enter the docket number other filings in reference to this 200 North Grand Avenue, Rothschild, excluding the last three digits in the application must be accompanied by WI 54474, (715) 355–6268. docket number field to access the proof of service on all persons listed in
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the service list prepared by the activity shall be deemed to be Dated: August 1, 2016. Commission in this proceeding, in authorized effective the day after the Nathaniel J. Davis, Sr., accordance with 18 CFR 4.34(b) and time allowed for protest. If a protest is Deputy Secretary. 385.2010. filed and not withdrawn within 30 days [FR Doc. 2016–19076 Filed 8–10–16; 8:45 am] Dated: August 4, 2016. after the time allowed for filing a BILLING CODE 6717–01–P protest, the instant request shall be Nathaniel J. Davis, Sr., treated as an application for Deputy Secretary. authorization pursuant to section 7 of DEPARTMENT OF ENERGY [FR Doc. 2016–19069 Filed 8–10–16; 8:45 am] the NGA. BILLING CODE 6717–01–P Pursuant to section 157.9 of the Federal Energy Regulatory Commission’s rules, 18 CFR 157.9, Commission within 90 days of this Notice the [Docket No. ID–7972–000] DEPARTMENT OF ENERGY Commission staff will either: Complete its environmental assessment (EA) and Federal Energy Regulatory Cushnie, Colin E.; Notice of Filing place it into the Commission’s public Commission record (eLibrary) for this proceeding, or Take notice that on July 29, 2016, [Docket No. CP16–483–000] issue a Notice of Schedule for Colin E. Cushnie submitted for filing, an Environmental Review. If a Notice of application for authority to hold ANR Pipeline Company; Notice of Schedule for Environmental Review is interlocking positions, pursuant to Request Under Blanket Authorization issued, it will indicate, among other section 305(b) of the Federal Power Act, milestones, the anticipated date for the 16 U.S.C. 825d(b) and part 45 of the Take notice that on July 21, 2016, Commission staff’s issuance of the final Federal Energy Regulatory ANR Pipeline Company (ANR), 700 environmental impact statement (FEIS) Commission’s (Commission) Rules of Louisiana Street, Houston, Texas or EA for this proposal. The filing of the Practice and Procedure, 18 CFR part 77002–2700, filed in Docket No. CP16– EA in the Commission’s public record 45.2(c). 483–000, a prior notice request pursuant for this proceeding or the issuance of a Any person desiring to intervene or to to sections 157.205, and 157.216 of the Notice of Schedule for Environmental protest this filing must file in Federal Energy Regulatory Review will serve to notify federal and accordance with Rules 211 and 214 of Commission’s (Commission) regulations state agencies of the timing for the the Commission’s Rules of Practice and under the Natural Gas Act (NGA), completion of all necessary reviews, and Procedure (18 CFR 385.211, 385.214). seeking authorization to abandon its the subsequent need to complete all Protests will be considered by the Henry 4 injection well and associated federal authorizations within 90 days of Commission in determining the well line located at its Loreed Storage the date of issuance of the Commission appropriate action to be taken, but will Field in Osceola County, Michigan, all staff’s FEIS or EA. not serve to make protestants parties to as more fully set forth in the Persons who wish to comment only the proceeding. Any person wishing to application, which is on file with the on the environmental review of this become a party must file a notice of Commission and open to public project should submit an original and intervention or motion to intervene, as inspection. The filing may also be two copies of their comments to the appropriate. Such notices, motions, or viewed on the web at http:// Secretary of the Commission. protests must be filed on or before the www.ferc.gov using the ‘‘eLibrary’’ link. Environmental commenter’s will be comment date. On or before the Enter the docket number excluding the placed on the Commission’s comment date, it is not necessary to last three digits in the docket number environmental mailing list, will receive serve motions to intervene or protests field to access the document. For copies of the environmental documents, on persons other than the Applicant. assistance, contact FERC at and will be notified of meetings The Commission encourages [email protected] or call associated with the Commission’s electronic submission of protests and toll-free, (866) 208–3676 or TTY, (202) environmental review process. interventions in lieu of paper using the 502–8659. Environmental commenter’s will not be ‘‘eFiling’’ link at http://www.ferc.gov. Any questions regarding the filing required to serve copies of filed Persons unable to file electronically should be directed to Linda Farquhar, documents on all other parties. should submit an original and 5 copies Manager, Project Determinations & However, the non-party commentary, of the protest or intervention to the Regulatory Administration, ANR will not receive copies of all documents Federal Energy Regulatory Commission, Pipeline Company, 700 Louisiana filed by other parties or issued by the 888 First Street NE., Washington, DC Street, Suite 700, Houston, Texas Commission (except for the mailing of 20426. 77002–2700, by telephone at: 832–320– environmental documents issued by the This filing is accessible on-line at 5685; or fax at: 832–320–6685; or email Commission) and will not have the right http://www.ferc.gov, using the at: [email protected]. to seek court review of the ‘‘eLibrary’’ link and is available for Any person or the Commission’s Staff Commission’s final order. electronic review in the Commission’s may, within 60 days after the issuance The Commission strongly encourages Public Reference Room in Washington, of the instant notice by the Commission, electronic filings of comments, protests, DC. There is an ‘‘eSubscription’’ link on file pursuant to Rule 214 of the and interventions via the Internet in lieu the Web site that enables subscribers to Commission’s Procedural Rules (18 CFR of paper. See 18 CFR 385.2001(a)(1)(iii) receive email notification when a 385.214) a motion to intervene or notice and the instructions on the document is added to a subscribed of intervention. Any person filing to Commission’s Web site (www.ferc.gov) docket(s). For assistance with any FERC intervene or the Commission’s staff under the ‘‘e-Filing’’ link. Persons Online service, please email may, pursuant to section 157.205 of the unable to file electronically should [email protected], or call Commission’s Regulations under the submit an original and 5 copies of the (866) 208–3676 (toll free). For TTY, call NGA (18 CFR 157.205) file a protest to protest or intervention to the Federal (202) 502–8659. the request. If no protest is filed within Energy Regulatory Commission, 888 Comment Date: 5:00 p.m. Eastern the time allowed therefore, the proposed First Street NE., Washington, DC 20426. Time on August 19, 2016.
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Dated: August 1, 2016. the acquisition of an easement to Jersey: The Bayway Lateral Project Nathaniel J. Davis, Sr., construct, operate, and maintain the would transport approximately 300,000 Deputy Secretary. proposed facilities. The company would dekatherms per day from Texas [FR Doc. 2016–19080 Filed 8–10–16; 8:45 am] seek to negotiate a mutually acceptable Eastern’s existing Line 38 to serve new BILLING CODE 6717–01–P agreement. However, if the Commission commercial customers (the Linden approves the project, that approval Cogen Power Plant and the Phillips 66 conveys with it the right of eminent Bayway Refinery). DEPARTMENT OF ENERGY domain. Therefore, if easement The Bayway Lateral Project would negotiations fail to produce an consist of the following facilities: Federal Energy Regulatory agreement, the pipeline company could • Approximately 2,300 feet of new Commission initiate condemnation proceedings 24-inch-diameter natural gas pipeline, [Docket No. CP16–473–000] where compensation would be most of which involves a horizontal determined in accordance with state directional drill crossing under the New Texas Eastern Transmission, LP; law. Jersey Turnpike; Notice of Intent To Prepare an Texas Eastern provided landowners • a new fenced metering and Environmental Assessment for the with a fact sheet prepared by the FERC regulating station; and • Proposed Bayway Lateral Project, and entitled ‘‘An Interstate Natural Gas related appurtenances and ancillary Request for Comments on Facility On My Land? What Do I Need facilities. Environmental Issues To Know?’’ This fact sheet addresses a The general location of the project number of typically asked questions, facilities is shown in appendix 1.1 The staff of the Federal Energy including the use of eminent domain Land Requirements for Construction Regulatory Commission (FERC or and how to participate in the Commission) will prepare an Commission’s proceedings. It is also Construction of the proposed facilities environmental assessment (EA) that will available for viewing on the FERC Web would disturb about 23.4 acres of land discuss the environmental impacts of site (www.ferc.gov). for the aboveground facilities and the the Bayway Lateral Project involving pipeline. Following construction, Texas construction and operation of facilities Public Participation Eastern would maintain 6.79 acres for by Texas Eastern Transmission, LP For your convenience, there are three permanent operation of the project’s (Texas Eastern) in the City of Linden, methods you can use to submit your facilities; the remaining acreage would Union County, New Jersey. The comments to the Commission. The be restored and revert to former uses. Commission will use this EA in its Commission encourages electronic filing The EA Process decision-making process to determine of comments and has expert staff whether the project is in the public available to assist you at (202) 502–8258 The National Environmental Policy convenience and necessity. or [email protected]. Please carefully Act (NEPA) requires the Commission to This notice announces the opening of follow these instructions so that your take into account the environmental the scoping process the Commission comments are properly recorded. impacts that could result from an action will use to gather input from the public (1) You can file your comments whenever it considers the issuance of a and interested agencies on the project. electronically using the eComment Certificate of Public Convenience and You can make a difference by providing feature on the Commission’s Web site Necessity. NEPA also requires us 2 to us with your specific comments or (www.ferc.gov) under the link to discover and address concerns the concerns about the project. Your Documents and Filings. This is an easy public may have about proposals. This comments should focus on the potential method for submitting brief, text-only process is referred to as ‘‘scoping.’’ The environmental effects, reasonable comments on a project; main goal of the scoping process is to alternatives, and measures to avoid or (2) You can file your comments focus the analysis in the EA on the lessen environmental impacts. Your electronically by using the eFiling important environmental issues. By this input will help the Commission staff feature on the Commission’s Web site notice, the Commission requests public determine what issues they need to (www.ferc.gov) under the link to comments on the scope of the issues to evaluate in the EA. To ensure that your Documents and Filings. With eFiling, address in the EA. We will consider all comments are timely and properly you can provide comments in a variety filed comments during the preparation recorded, please send your comments so of formats by attaching them as a file of the EA. that the Commission receives them in with your submission. New eFiling In the EA we will discuss impacts that Washington, DC on or before September users must first create an account by could occur as a result of the 6, 2016. clicking on ‘‘eRegister.’’ If you are filing construction and operation of the If you sent comments on this project a comment on a particular project, proposed project under these general to the Commission before the opening of please select ‘‘Comment on a Filing’’ as headings: this docket on June 29, 2016, you will the filing type; or • Geology and soils; need to file those comments in Docket (3) You can file a paper copy of your • land use; No. CP16–473–000 to ensure they are comments by mailing them to the • water resources, fisheries, and wetlands; considered as part of this proceeding. following address. Be sure to reference This notice is being sent to the the project docket number (CP16–473– 1 The appendices referenced in this notice will Commission’s current environmental 000) with your submission: Kimberly D. not appear in the Federal Register. Copies of mailing list for this project. State and appendices were sent to all those receiving this Bose, Secretary, Federal Energy notice in the mail and are available at www.ferc.gov local government representatives should Regulatory Commission, 888 First Street using the link called ‘‘eLibrary’’ or from the notify their constituents of this NE., Room 1A, Washington, DC 20426. Commission’s Public Reference Room, 888 First proposed project and encourage them to Street NE., Washington, DC 20426, or call (202) comment on their areas of concern. Summary of the Proposed Project 502–8371. For instructions on connecting to Texas Eastern proposes to construct eLibrary, refer to the last page of this notice. If you are a landowner receiving this 2 ‘‘We,’’ ‘‘us,’’ and ‘‘our’’ refer to the notice, a pipeline company pipeline and aboveground facilities in environmental staff of the Commission’s Office of representative may contact you about the City of Linden, Union County, New Energy Projects.
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• cultural resources; construction right-of-way, contractor/ ‘‘eLibrary’’ link. Click on the eLibrary • vegetation and wildlife; pipe storage yards, compressor stations, link, click on ‘‘General Search’’ and • air quality and noise; • and access roads). Our EA for this enter the docket number, excluding the endangered and threatened species; project will document our findings on • public safety; and last three digits in the Docket Number • cumulative impacts. the impacts on historic properties and field (i.e., CP16–473). Be sure you have summarize the status of consultations selected an appropriate date range. For We will also evaluate reasonable under section 106. alternatives to the proposed project or assistance, please contact FERC Online portions of the project, and make Environmental Mailing List Support at [email protected] or toll free at (866) 208–3676, or for recommendations on how to lessen or The environmental mailing list avoid impacts on the various resource includes federal, state, and local TTY, contact (202) 502–8659. The areas. government representatives and eLibrary link also provides access to the The EA will present our independent agencies; elected officials; texts of formal documents issued by the analysis of the issues. The EA will be environmental and public interest Commission, such as orders, notices, available in the public record through groups; Native American Tribes; other and rulemakings. eLibrary. Depending on the comments interested parties; and local libraries In addition, the Commission offers a received during the scoping process, we and newspapers. This list also includes free service called eSubscription which may also publish and distribute the EA all affected landowners (as defined in allows you to keep track of all formal to the public for an allotted comment the Commission’s regulations) who are issuances and submittals in specific period. We will consider all comments potential right-of-way grantors, whose dockets. This can reduce the amount of on the EA before making our property may be used temporarily for time you spend researching proceedings recommendations to the Commission. project purposes, or who own homes by automatically providing you with To ensure we have the opportunity to within certain distances of aboveground notification of these filings, document consider and address your comments, facilities, and anyone who submits summaries, and direct links to the please carefully follow the instructions comments on the project. We will in the Public Participation section on documents. Go to www.ferc.gov/docs- update the environmental mailing list as filing/esubscription.asp. page 2. the analysis proceeds to ensure that we With this notice, we are asking send the information related to this Finally, public meetings or site visits agencies with jurisdiction by law and/ environmental review to all individuals, will be posted on the Commission’s or special expertise with respect to the organizations, and government entities calendar located at www.ferc.gov/ environmental issues of this project to interested in and/or potentially affected EventCalendar/EventsList.aspx along formally cooperate with us in the by the proposed project. with other related information. preparation of the EA.3 Agencies that If we publish and distribute the EA, Dated: August 5, 2016. would like to request cooperating copies of the EA will be sent to the Nathaniel J. Davis, Sr., agency status should follow the environmental mailing list for public instructions for filing comments review and comment. If you would Deputy Secretary. provided under the Public Participation prefer to receive a paper copy of the [FR Doc. 2016–19073 Filed 8–10–16; 8:45 am] section of this notice. document instead of the CD version or BILLING CODE 6717–01–P Consultations Under Section 106 of the would like to remove your name from National Historic Preservation Act the mailing list, please return the attached Information Request (appendix DEPARTMENT OF ENERGY In accordance with the Advisory 2). Council on Historic Preservation’s Federal Energy Regulatory implementing regulations for section Becoming an Intervenor Commission 106 of the National Historic In addition to involvement in the EA Preservation Act, we are using this scoping process, you may want to [Docket No. EL16–97–000] notice to initiate consultation with the become an ‘‘intervenor’’ which is an applicable State Historic Preservation official party to the Commission’s NextEra Energy Transmission West, Office (SHPO), and to solicit their views proceeding. Intervenors play a more LLC; Notice of Institution of Section and those of other government agencies, formal role in the process and are able 206 Proceeding and Refund Effective interested Indian tribes, and the public to file briefs, appear at hearings, and be Date on the project’s potential effects on heard by the courts if they choose to 4 historic properties. We will define the appeal the Commission’s final ruling. On August 5, 2016, the Commission project-specific Area of Potential Effects An intervenor formally participates in issued an order in Docket No. EL16–97– (APE) in consultation with the SHPO as the proceeding by filing a request to 000, pursuant to section 206 of the the project develops. On natural gas intervene. Instructions for becoming an Federal Power Act (FPA), 16 U.S.C. facility projects, the APE at a minimum intervenor are in the ‘‘Document-less 824e (2012), instituting an investigation encompasses all areas subject to ground Intervention Guide’’ under the ‘‘e-filing’’ into whether the formula rate protocols disturbance (examples include link on the Commission’s Web site. of NextEra Energy Transmission West, Motions to intervene are more fully LLC may be unjust, unreasonable, 3 The Council on Environmental Quality described at http://www.ferc.gov/ regulations addressing cooperating agency unduly discriminatory or preferential. responsibilities are at Title 40, Code of Federal resources/guides/how-to/intervene.asp. NextEra Energy Transmission West, Regulations, Part 1501.6. Additional Information LLC, 156 FERC ¶ 61,095 (2016). 4 The Advisory Council on Historic Preservation’s regulations are at Title 36, Code of Federal Additional information about the The refund effective date in Docket Regulations, Part 800. Those regulations define project is available from the No. EL16–97–000, established pursuant historic properties as any prehistoric or historic to section 206(b) of the FPA, will be the district, site, building, structure, or object included Commission’s Office of External Affairs, in or eligible for inclusion in the National Register at (866) 208–FERC, or on the FERC Web date of publication of this notice in the of Historic Places. site at www.ferc.gov using the Federal Register.
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Dated: August 5, 2016. Accession Number: 20160805–5094. Docket Numbers: ER16–2386–000. Nathaniel J. Davis, Sr., Comments Due: 5 p.m. ET 8/26/16. Applicants: ISO New England Inc., Deputy Secretary. Docket Numbers: ER16–2379–000. Central Maine Power Company. [FR Doc. 2016–19074 Filed 8–10–16; 8:45 am] Applicants: Alabama Power Description: § 205(d) Rate Filing: Revisions to Schedule 21–CMP of ISO– BILLING CODE 6717–01–P Company. Description: Tariff Cancellation: NE OATT to Comply with Peach Solar Energy 3 (Project 2) SGIA Normalization Req. to be effective DEPARTMENT OF ENERGY Termination Filing to be effective 6/1/2016. 8/5/2016. Filed Date: 8/5/16. Federal Energy Regulatory Filed Date: 8/5/16. Accession Number: 20160805–5150. Comments Due: 5 p.m. ET 8/26/16. Commission Accession Number: 20160805–5106. Comments Due: 5 p.m. ET 8/26/16. The filings are accessible in the Combined Notice of Filings #1 Commission’s eLibrary system by Docket Numbers: ER16–2380–000. clicking on the links or querying the Take notice that the Commission Applicants: Alabama Power docket number. received the following electric rate Company. Any person desiring to intervene or filings: Description: Tariff Cancellation: Duke protest in any of the above proceedings Docket Numbers: ER10–2437–003. Energy Renewables Solar SGIA must file in accordance with Rules 211 Applicants: Arizona Public Service Termination Filing to be effective and 214 of the Commission’s Company. 8/5/2016. Regulations (18 CFR 385.211 and Description: Supplement to December Filed Date: 8/5/16. 385.214) on or before 5:00 p.m. Eastern Accession Number: 20160805–5107. 22, 2015 Triennial Market Power time on the specified comment date. Comments Due: 5 p.m. ET 8/26/16. Update [SIL Study] of Arizona Public Protests may be considered, but Service Company. Docket Numbers: ER16–2381–000. intervention is necessary to become a Filed Date: 8/5/16. Applicants: Alabama Power party to the proceeding. Accession Number: 20160805–5167. Company. eFiling is encouraged. More detailed Comments Due: 5 p.m. ET 8/26/16. Description: Tariff Cancellation: information relating to filing Docket Numbers: ER10–2437–007. Infigen Energy US Development requirements, interventions, protests, Applicants: Arizona Public Service (Georgia Solar III) LGIA Termination service, and qualifying facilities filings Company. Filing to be effective 8/5/2016. can be found at: http://www.ferc.gov/ Description: Notice of Non-Material Filed Date: 8/5/16. docs-filing/efiling/filing-req.pdf. For Change in Status of Arizona Public Accession Number: 20160805–5108. other information, call (866) 208–3676 Service Company. Comments Due: 5 p.m. ET 8/26/16. (toll free). For TTY, call (202) 502–8659. Filed Date: 8/4/16. Docket Numbers: ER16–2382–000. Dated: August 5, 2016. Accession Number: 20160804–5174. Applicants: Southern California Nathaniel J. Davis, Sr., Comments Due: 5 p.m. ET 8/25/16. Edison Company. Deputy Secretary. Docket Numbers: ER10–2437–008. Description: § 205(d) Rate Filing: Applicants: Arizona Public Service Amended Sierra Pacific-Edison Sliver [FR Doc. 2016–19071 Filed 8–10–16; 8:45 am] Company. Peak 55kV Interconnection Agreement BILLING CODE 6717–01–P Description: Notice of Change in to be effective 8/6/2016. Status of Arizona Public Service Filed Date: 8/5/16. Company. Accession Number: 20160805–5110. ENVIRONMENTAL PROTECTION Filed Date: 8/5/16. Comments Due: 5 p.m. ET 8/26/16. AGENCY Accession Number: 20160805–5170. Docket Numbers: ER16–2383–000. [EPA–HQ–OPPT–2003–0004; FRL–9949–40] Comments Due: 5 p.m. ET 8/26/16. Applicants: Tampa Electric Company. Docket Numbers: ER15–958–005. Description: Compliance filing: Access to Confidential Business Applicants: Transource Kansas, LLC. Compliance Filing Under Order No 828 Information by the National Institute Description: Compliance filing: to be effective 10/5/2016. for Occupational Safety and Health Filed Date: 8/5/16. Transource Kansas Compliance Filing to AGENCY: Environmental Protection Accession Number: 20160805–5114. be effective 4/3/2015. Agency (EPA). Filed Date: 8/5/16. Comments Due: 5 p.m. ET 8/26/16. ACTION: Notice. Accession Number: 20160805–5086. Docket Numbers: ER16–2384–000. Comments Due: 5 p.m. ET 8/26/16. Applicants: PacifiCorp. SUMMARY: EPA authorized the National Docket Numbers: ER16–1934–000. Description: § 205(d) Rate Filing: Institute for Occupational Safety and Applicants: Drift Marketplace, Inc. OATT Revised Section 29 (control area Health (NIOSH), to access information Description: Amendment to June 15, requirement) to be effective 10/5/2016. which has been submitted to EPA under 2016 Drift Marketplace, Inc. tariff filing. Filed Date: 8/5/16. all sections of the Toxic Substances Filed Date: 8/5/16. Accession Number: 20160805–5128. Control Act (TSCA). Some of the Accession Number: 20160805–5071. Comments Due: 5 p.m. ET 8/26/16. information may be claimed or Comments Due: 5 p.m. ET 8/15/16. Docket Numbers: ER16–2385–000. determined to be Confidential Business Docket Numbers: ER16–2378–000. Applicants: Southern California Information (CBI). This is a renewal of Applicants: ISO New England Inc., Edison Company. a previous authorization. Eversource Energy Service Company. Description: § 205(d) Rate Filing: DATES: Access to the confidential data Description: § 205(d) Rate Filing: Eight Letter Agreements ACES Projects occurred as a result of an on-going Revisions to Att. F of ISO–NE OATT to to be effective 8/8/2016. agreement between NIOSH and U.S. Comply with Normalization Filed Date: 8/5/16. Environmental Protection Agency, Requirements to be effective 6/1/2016. Accession Number: 20160805–5145. which granted NIOSH access to all Filed Date: 8/5/16. Comments Due: 5 p.m. ET 8/26/16. sections of TSCA CBI.
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FOR FURTHER INFORMATION CONTACT: For including those created by new For general information contact: The technical information contact: Scott technology in occupational safety and TSCA-Hotline, ABVI-Goodwill, 422 Sherlock, Environmental Assistance health. South Clinton Ave., Rochester, NY Division (7408M), Office of Pollution EPA is issuing this notice to inform 14620; telephone number: (202) 554– Prevention and Toxics, Environmental all submitters of information under all 1404; email address: TSCA-Hotline@ Protection Agency, 1200 Pennsylvania sections of TSCA that the Agency will epa.gov. continue to provide NIOSH access to Ave. NW., Washington, DC 20460–0001; SUPPLEMENTARY INFORMATION: telephone number: (202) 564–8257; these CBI materials on a need-to-know email address: [email protected]. basis only. All access to TSCA CBI I. General Information under this agreement will take place at For general information contact: The A. Does this action apply to me? TSCA-Hotline, ABVI-Goodwill, 422 EPA Headquarters and the NIOSH South Clinton Ave., Rochester, NY Headquarters located at 1150 Tusculum This action is directed to the public 14620; telephone number: (202) 554– Avenue, Cincinnati, OH 45226–1998. in general. This action may, however, be 1404; email address: TSCA-Hotline@ Clearance for access to TSCA CBI of interest to all who manufacture, epa.gov. under this arrangement may continue process, or distribute industrial until terminated by either party. chemicals. Since other entities may also SUPPLEMENTARY INFORMATION: NIOSH personnel were briefed on be interested, the Agency has not I. General Information appropriate security procedures before attempted to describe all the specific they were permitted access to the CBI. entities that may be affected by this A. Does this action apply to me? action. This action is directed to the public Authority: 15 U.S.C. 2601 et seq. in general. This action may, however, be Dated: July 28, 2016. B. How can I get copies of this document and other related information? of interest to all who manufacture, Pamela S. Myrick, process, or distribute industrial Director, Information Management Division, The docket for this action, identified chemicals. Since other entities may also Office of Pollution Prevention and Toxics. by docket identification (ID) number be interested, the Agency has not [FR Doc. 2016–19121 Filed 8–10–16; 8:45 am] EPA–HQ–OPPT–2003–0004, is available attempted to describe all the specific BILLING CODE 6560–50–P at http://www.regulations.gov or at the entities that may be affected by this Office of Pollution Prevention and action. Toxics Docket (OPPT Docket), ENVIRONMENTAL PROTECTION Environmental Protection Agency B. How can I get copies of this document AGENCY Docket Center (EPA/DC), West William and other related information? Jefferson Clinton Bldg., Rm. 3334, 1301 [EPA–HQ–OPPT–2003–0004; FRL–9949–41] The docket for this action, identified Constitution Ave. NW., Washington, by docket identification (ID) number Access to Confidential Business DC. The Public Reading Room is open EPA–HQ–OPPT–2003–0004, is available Information by the U.S. Consumer from 8:30 a.m. to 4:30 p.m., Monday at http://www.regulations.gov or at the Product Safety Commission through Friday, excluding legal Office of Pollution Prevention and holidays. The telephone number for the Toxics Docket (OPPT Docket), AGENCY: Environmental Protection Public Reading Room is (202) 566–1744, Environmental Protection Agency Agency (EPA). and the telephone number for the OPPT Docket Center (EPA/DC), West William ACTION: Notice. Docket is (202) 566–0280. Please review Jefferson Clinton Bldg., Rm. 3334, 1301 the visitor instructions and additional SUMMARY: Constitution Ave. NW., Washington, EPA has authorized the U.S. information about the docket available DC. The Public Reading Room is open Consumer Product Safety Commission at http://www.epa.gov/dockets. from 8:30 a.m. to 4:30 p.m., Monday (CPSC), to access information which has through Friday, excluding legal been submitted to EPA under all II. What action is the Agency taking? holidays. The telephone number for the sections of the Toxic Substances Control Under a MOU dated September 23, Public Reading Room is (202) 566–1744, Act (TSCA). Some of the information 1986, the CPSC agreed to EPA and the telephone number for the OPPT may be claimed or determined to be procedures governing access to CBI Docket is (202) 566–0280. Please review Confidential Business Information (CBI). submitted to EPA under TSCA. the visitor instructions and additional This is a renewal of a previous In accordance with 40 CFR 2.306(h), information about the docket available authorization. EPA has determined that CPSC requires at http://www.epa.gov/dockets. DATES: Access to the confidential data access to CBI submitted to EPA under submitted to EPA under all sections of all sections of TSCA to perform II. What action is the agency taking? TSCA continues as a result of an successfully their responsibilities under In July 2016, NIOSH requested access ongoing Memorandum of the Consumer Product Safety Act and to certain materials, including TSCA Understanding (MOU) between CPSC TSCA. CPSC’s personnel are given CBI submitted to EPA. In a previous and the EPA dated September 23, 1986, access to information submitted to EPA notice published in the Federal Register which granted CPSC immediate access under all sections of TSCA. Some of the on August 18, 2006 (71 FR 47807) (FRL– to all sections of the TSCA CBI. information is claimed or determined to 8087–7), EPA confirmed that NIOSH FOR FURTHER INFORMATION CONTACT: be CBI. needed to have access to CBI under all For technical information contact: Under terms of the MOU, CPSC is not sections of TSCA. EPA is issuing notice Scott Sherlock, Environmental required to renew its access to TSCA once again that NIOSH maintain access Assistance Division (7408M), Office of CBI. EPA publishes this notice to the to TSCA information, including CBI, in Pollution Prevention and Toxics, public from time to time to reiterate and order to meet its obligations to conduct Environmental Protection Agency, 1200 confirm that access to TSCA CBI has special research, experiments, and Pennsylvania Ave. NW., Washington, been granted to another federal agency. demonstrations relating to occupational DC 20460–0001; telephone number: In a previous notice published in the safety and health as are necessary to (202) 564–8257; email address: Federal Register on November 16, 2011 explore chemical related issues, [email protected]. (76 FR 71018) (FRL–9327–5), EPA
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confirmed that CPSC continues to have I. General Information EPA Headquarters and BMI’s site access to CBI under all sections of located in Columbus, OH, in accordance A. Does this action apply to me? TSCA. EPA is issuing notice once again with EPA’s TSCA CBI Protection to confirm that CPSC maintains access This action is directed to the public Manual. under the existing MOU. in general. This action may, however, be Access to TSCA data, including CBI, EPA is issuing this notice to inform of interest to all who manufacture, will continue until June 12, 2021. If the all submitters of information under all process, or distribute industrial contract is extended, this access will sections of TSCA that EPA provides the chemicals. Since other entities may also also continue for the duration of the CPSC access to these CBI materials on be interested, the Agency has not extended contract without further a need-to-know basis only. All access to attempted to describe all the specific notice. TSCA CBI under this MOU will take entities that may be affected by this BMI personnel have signed place at EPA Headquarters and CPSC’s action. nondisclosure agreements and were 5 Research Drive, Rockville, Maryland, B. How can I get copies of this document briefed on appropriate security site in accordance with EPA’s TSCA CBI and other related information? procedures before they are permitted Protection Manual. access to TSCA CBI. The docket for this action, identified CPSC personnel are required to sign Authority: 15 U.S.C. 2601 et seq. nondisclosure agreements and are by docket identification (ID) number briefed on appropriate security EPA–HQ–OPPT–2003–0004 is available Dated: July 28, 2016. procedures before they are permitted at http://www.regulations.gov or at the Pamela S. Myrick, access to TSCA CBI. Office of Pollution Prevention and Director, Information Management Division, Office of Pollution Prevention and Toxics. Authority: 15 U.S.C. 2601 et seq. Toxics Docket (OPPT Docket), Environmental Protection Agency [FR Doc. 2016–19126 Filed 8–10–16; 8:45 am] Dated: July 28, 2016. Docket Center (EPA/DC), West William BILLING CODE 6560–50–P Pamela S. Myrick, Jefferson Clinton Bldg., Rm. 3334, 1301 Director, Information Management Division, Constitution Ave. NW., Washington, Office of Pollution Prevention and Toxics. DC. The Public Reading Room is open FEDERAL COMMUNICATIONS [FR Doc. 2016–19124 Filed 8–10–16; 8:45 am] from 8:30 a.m. to 4:30 p.m., Monday COMMISSION BILLING CODE 6560–50–P through Friday, excluding legal holidays. The telephone number for the [OMB 3060–0110] Public Reading Room is (202) 566–1744, Information Collection Being Reviewed ENVIRONMENTAL PROTECTION and the telephone number for the OPPT AGENCY by the Federal Communications Docket is (202) 566–0280. Please review Commission [EPA–HQ–OPPT–2003–0004; FRL–9949–62] the visitor instructions and additional information about the docket available AGENCY: Federal Communications Access to Confidential Business at http://www.epa.gov/dockets. Commission. Information by Battelle Memorial II. What action is the agency taking? ACTION: Notice and request for Institute comments. Under EPA contract number EP–W– AGENCY: Environmental Protection 16–017, contractor BMI of 505 King SUMMARY: As part of its continuing effort Agency (EPA). Avenue, Columbus, OH, is assisting the to reduce paperwork burdens, and as ACTION: Notice. Office of Pollution Prevention and required by the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501– SUMMARY: EPA has authorized its Toxics (OPPT) by providing statistical contractor, Battelle Memorial Institute and technical support for the 3520), the Federal Communications (BMI) of Columbus, OH, to access assessment of Toxics Substances. They Commission (FCC or the Commission) information which has been submitted are also providing statistical, invites the general public and other to EPA under sections 4, 5, 6, 8(a), 11 mathematical, field data collection, and Federal agencies to take this and 21 of the Toxic Substances Control technical analysis support and planning opportunity to comment on the Act (TSCA). Some of the information for OPPT programs such as Lead following information collection. may be claimed or determined to be Programs and other technology and Comments are requested concerning: Confidential Business Information (CBI). exposure related studies. Whether the proposed collection of In accordance with 40 CFR 2.306(j), information is necessary for the proper DATES: Access to the confidential data EPA has determined that under EPA performance of the functions of the occurred on or about July 14, 2016. contract number EP–W–16–017, BMI Commission, including whether the FOR FURTHER INFORMATION CONTACT: For required access to CBI submitted to EPA information shall have practical utility; technical information contact: Scott under section(s) 4, 5, 6, 8(a), 11 and 21 the accuracy of the Commission’s Sherlock, Environmental Assistance of TSCA to perform successfully the burden estimate; ways to enhance the Division (7408M), Office of Pollution duties specified under the contract. BMI quality, utility, and clarity of the Prevention and Toxics, Environmental personnel were given access to information collected; ways to minimize Protection Agency, 1200 Pennsylvania information submitted to EPA under the burden of the collection of Ave. NW., Washington, DC 20460–0001; sections 4, 5, 6, 8(a), 11 and 21 of TSCA. information on the respondents, telephone number: (202) 564–8257; Some of the information may be claimed including the use of automated email address: [email protected]. or determined to be CBI. collection techniques or other forms of For general information contact: The EPA is issuing this notice to inform information technology; and ways to TSCA-Hotline, ABVI-Goodwill, 422 all submitters of information under further reduce the information South Clinton Ave., Rochester, NY sections 4, 5, 6, 8(a), 11 and 21 of TSCA collection burden on small business 14620; telephone number: (202) 554– that EPA has provided BMI access to concerns with fewer than 25 employees. 1404; email address: TSCA-Hotline@ these CBI materials on a need-to-know The FCC may not conduct or sponsor epa.gov. basis only. All access to TSCA CBI a collection of information unless it SUPPLEMENTARY INFORMATION: under this contract is taking place at displays a currently valid control
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number. No person shall be subject to Licensees of broadcast stations must information is necessary for the proper any penalty for failing to comply with apply for renewal of their licenses every performance of the functions of the a collection of information subject to the eight years. Commission, including whether the PRA that does not display a valid Office This collection also includes the third information shall have practical utility; of Management and Budget (OMB) party disclosure requirement of 47 CFR the accuracy of the Commission’s control number. Section 73.3580. This rule requires local burden estimate; ways to enhance the DATES: Written PRA comments should public notice of the filing of the renewal quality, utility, and clarity of the be submitted on or before October 11, application. For AM, FM, Class A TV information collected; ways to minimize 2016. If you anticipate that you will be and TV stations, these announcements the burden of the collection of submitting comments, but find it are made on-the-air. For FM/TV information on the respondents, difficult to do so within the period of Translators and AM/FM/TV stations including the use of automated time allowed by this notice, you should that are silent, the local public notice is collection techniques or other forms of advise the contact listed below as soon accomplished through publication in a information technology; and ways to as possible. newspaper of general circulation in the further reduce the information ADDRESSES: Direct all PRA comments to community or area being served. collection burden on small business Cathy Williams, FCC, via email PRA@ 47 CFR Section 73.3555 is also concerns with fewer than 25 employees. fcc.gov and to [email protected]. included in this information collection. The FCC may not conduct or sponsor a Section 73.3555 states that in order to collection of information unless it FOR FURTHER INFORMATION CONTACT: For overcome the negative presumption set displays a currently valid OMB control additional information about the forth in 47 CFR Section 73.3555(d)(4) number. No person shall be subject to information collection, contact Cathy with respect to the combination of a any penalty for failing to comply with Williams at (202) 418–2918. major newspaper and television station, a collection of information subject to the SUPPLEMENTARY INFORMATION: the applicant must show by clear and PRA that does not display a valid OMB OMB Control Number: 3060–0110. convincing evidence that the co-owned control number. Title: Application for Renewal of major newspaper and station will DATES: Written PRA comments should Broadcast Station License, FCC Form increase the diversity of independent be submitted on or before September 12, 303–S; Section 73.3555(d), Daily news outlets and increase competition 2016. If you anticipate that you will be Newspaper Cross-Ownership. among independent news sources in the submitting comments, but find it Form Number: FCC Form 303–S. market, and the factors set forth in 47 Type of Review: Extension of a difficult to do so within the period of CFR Section 73.3555(d)(5) will inform currently approved collection. time allowed by this notice, you should this decision. (OMB approval was Respondents: Business or other for advise the contact listed below as soon previously received for the information profit entities; Not for profit institutions; as possible. collection requirements contained in State, Local or Tribal Governments. ADDRESSES: Direct all PRA comments this rule section (waiver showings/ Number of Respondent and Nicholas A. Fraser, OMB, via email: filings)). Responses: 3,821 respondents, 3,821 [email protected]; and responses. Federal Communications Commission. to Cathy Williams, FCC, via email PRA@ Obligation to Respond: Required to Gloria J. Miles, fcc.gov and to [email protected]. obtain benefits—Statutory authority for Federal Register Liaison Officer, Office of the Include in the comments the OMB this collection of information is Secretary. control number as shown in the contained in Sections 154(i), 303, 307 [FR Doc. 2016–19086 Filed 8–10–16; 8:45 am] SUPPLEMENTARY INFORMATION section and 308 of the Communications Act of BILLING CODE 6712–01–P below. 1934, as amended, and Section 204 of FOR FURTHER INFORMATION CONTACT: For the Telecommunications Act of 1996. additional information about the Estimated Time per Response: 1.25– FEDERAL COMMUNICATIONS information collection, contact Cathy 12 hours. COMMISSION Williams at (202) 418–2918. Frequency of Response: Every eight [OMB 3060–1158] SUPPLEMENTARY INFORMATION: year reporting requirement; Third party OMB Control Number: 3060–1158. disclosure requirement. Information Collection Being Title: Transparency Rule Disclosures, Total Annual Burden: 10,403 hours. Submitted for Review and Approval to Protecting and Promoting the Open Total Annual Costs: $3,886,358. the Office of Management and Budget Internet, Report and Order on Remand, Nature of Response: Required to Declaratory Ruling, and Order, GN obtain or retain benefits. The statutory AGENCY: Federal Communications Docket No. 14–28, FCC 15–24. authority for the collection is contained Commission. Form Number: N/A. Sections 154(i), 303, 307 and 308 of the ACTION: Notice and request for Type of Review: Revision of a Communications Act of 1934, as comments. currently approved collection. amended, and Section 204 of the Respondents: Businesses or other for- Telecommunications Act of 1996. SUMMARY: As part of its continuing effort profit entities; Not-for profit entities; Nature and Extent of Confidentiality: to reduce paperwork burdens, and as State, local or tribal governments. There is no need for confidentiality with required by the Paperwork Reduction Number of Respondents and this information collection. Act (PRA) of 1995 (44 U.S.C. 3501– Responses: 3,188 respondents; 3,188 Privacy Act Impact Assessment: No 3520), the Federal Communications responses. impact(s). Commission (FCC or Commission) Estimated Time per Response: 31.2 Needs and Uses: FCC Form 303–S is invites the general public and other hours (average). used in applying for renewal of license Federal agencies to take this Frequency of Response: On occasion for commercial or noncommercial AM, opportunity to comment on the reporting requirements; Third party FM, TV, FM translator, TV translator, following information collections. disclosure requirement. Obligation to Class A TV, or Low Power TV, and Low Comments are requested concerning: Respond: Mandatory. The statutory Power FM broadcast station licenses. whether the proposed collection of authority for the information collection
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requirements are contained in sections ADDRESSES: 999 E Street NW., Morrilton, Arkansas and as members of 1, 2, 3, 4, 10, 201, 202, 301, 303, 316, Washington, DC a family control group. The control 332, 403, 501, 503 of the STATUS: This meeting will be closed to group also includes the J.T. Compton Communications Act of 1934, as the public. GST Exempt Trust, James T. Compton as amended, and section 706 of the ITEMS TO BE DISCUSSED: Compliance trustee, James T. Compton, individually, Telecommunications Act of 1996, as matters pursuant to 52 U.S.C. 30109. Lauren A. Compton, the Niva Compton amended, and 47 U.S.C. Sections 151, Matters concerning participation in civil Lancaster GST Exempt Trust, and the 152, 153, 154, 160, 201, 202, 301, 303, actions or proceeding, or arbitration. Niva Lancaster Revocable Living Trust, 316, 332, 403, 501, 503, and 1302. Information the premature disclosure of Niva C. Lancaster, Springfield, Missouri, Total Annual Burden: 99,466 hours. which would be likely to have a as trustees; and the Daniels Family Total Annualized Capital, Operation, considerable adverse effect on the Trust dated July 12, 2006, Charles and Maintenance Costs: $640,000. implementation of a proposed Daniels and Sonya Daniels, both of Nature and Extent of Confidentiality: Commission action. Navarre, Florida, as co-trustees, and the An assurance of confidentiality is not FOR MORE INFORMATION CONTACT: Judith Douglas Lancaster Trust, Sonya Daniels offered because this information Ingram, Press Officer. Telephone: (202) as trustee; to acquire and retain the collection does not require the 694–1220. voting shares of Stone Bancshares, Inc., collection of personally identifiable Mountain View, Arkansas, and thereby information from individuals. Shelley E. Garr, acquire and retain shares of Stone Bank, Privacy Impact Assessment: No Deputy Secretary. Mountain View, Arkansas. impacts(s). [FR Doc. 2016–19246 Filed 8–9–16; 4:15 pm] Board of Governors of the Federal Reserve Needs and Uses: The rules adopted in BILLING CODE 6715–01–P System, August 5, 2016. the Protecting and Promoting the Open Margaret McCloskey Shanks, Internet Report and Order on Remand, Deputy Secretary of the Board. Declaratory Ruling, and Order, GN FEDERAL RESERVE SYSTEM Docket No. 14–28, FCC 15–24, require [FR Doc. 2016–19058 Filed 8–10–16; 8:45 am] all providers of broadband Internet Change in Bank Control Notices; BILLING CODE 6210–01–P access service to publicly disclose Acquisitions of Shares of a Bank or Bank Holding Company accurate information regarding the FEDERAL RESERVE SYSTEM network management practices, The notificants listed below have performance, and commercial terms of applied under the Change in Bank Formations of, Acquisitions by, and their broadband Internet access services Control Act (12 U.S.C. 1817(j)) and Mergers of Bank Holding Companies sufficient for consumers to make § 225.41 of the Board’s Regulation Y (12 informed choices regarding use of such The companies listed in this notice CFR 225.41) to acquire shares of a bank services and for content, application, have applied to the Board for approval, or bank holding company. The factors service, and device providers to pursuant to the Bank Holding Company that are considered in acting on the develop, market, and maintain Internet Act of 1956 (12 U.S.C. 1841 et seq.) notices are set forth in paragraph 7 of offerings. The rules ensure transparency (BHC Act), Regulation Y (12 CFR part the Act (12 U.S.C. 1817(j)(7)). and continued Internet openness, while The notices are available for 225), and all other applicable statutes making clear that broadband providers immediate inspection at the Federal and regulations to become a bank can manage their networks effectively. Reserve Bank indicated. The notices holding company and/or to acquire the The Commission anticipates that small also will be available for inspection at assets or the ownership of, control of, or entities may have less of a burden, and the offices of the Board of Governors. the power to vote shares of a bank or larger entities may have more of a Interested persons may express their bank holding company and all of the burden than the average compliance views in writing to the Reserve Bank banks and nonbanking companies burden. This is because larger entities indicated for that notice or to the offices owned by the bank holding company, serve more customers, are more likely to of the Board of Governors. Comments including the companies listed below. serve multiple geographic regions, and must be received not later than August The applications listed below, as well are not eligible to avail themselves of 25, 2016. as other related filings required by the the temporary exemption from the A. Federal Reserve Bank of St. Louis Board, are available for immediate enhancements granted to smaller (David L. Hubbard, Senior Manager) inspection at the Federal Reserve Bank providers. P.O. Box 442, St. Louis, Missouri indicated. The applications will also be Federal Communications Commission. 63166–2034. Comments can also be sent available for inspection at the offices of Gloria J. Miles, electronically to the Board of Governors. Interested Federal Register Liaison Officer, Office of the [email protected]: persons may express their views in Secretary. 1. Notice by the J.T. Compton SBI writing on the standards enumerated in the BHC Act (12 U.S.C. 1842(c)). If the [FR Doc. 2016–19087 Filed 8–10–16; 8:45 am] Trust, James T. Compton, Mountain proposal also involves the acquisition of BILLING CODE 6712–01–P View, Arkansas, as trustee; the James Kent Compton SBI Trust, James Kent a nonbanking company, the review also Compton, Conway, Arkansas, as trustee, includes whether the acquisition of the nonbanking company complies with the FEDERAL ELECTION COMMISSION the Charles Kevin Compton SBI Trust, Charles Kevin Compton, Little Rock, standards in section 4 of the BHC Act Sunshine Act Meeting Arkansas, as trustee; and the Kris David (12 U.S.C. 1843). Unless otherwise Compton SBI Trust, Kris David noted, nonbanking activities will be AGENCY: Federal Election Commission. Compton, and Debra Lynn Walters conducted throughout the United States. ACTION: Notice. Compton, both of Hendersonville, North Unless otherwise noted, comments Carolina, as co-trustees, all as general regarding each of these applications DATES: Tuesday, August 16, 2016 at the partners of the Compton Stone Quarry must be received at the Reserve Bank conclusion of the open meeting. Family Limited Partnership, LLLP, indicated or the offices of the Board of
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Governors not later than September 6, East Sixth Street, Cleveland, Ohio niosh/docket/review/docket156a/pdfs/ 2016. 44101–2566. Comments can also be sent g1-013-peracetic-acid-cas-79-21-0.pdf A. Federal Reserve Bank of Atlanta electronically to for an additional 60 days. (Chapelle Davis, Assistant Vice [email protected]: DATES: Electronic or written comments President) 1000 Peachtree Street NE., 1. Tinka K. Powell 2016 Family Trust; on the draft IDLH Value Profile for Atlanta, Georgia 30309. Comments can Tinka K. Powell 2016 Family Trust fbo peracetic acid must be received by also be sent electronically to John W. Powell; Tinka K. Powell 2016 October 11, 2016. [email protected]: Family Trust fbo Mark W. Powell; Tinka ADDRESSES: You may submit comments, 1. Pinnacle Financial Corporation, K. Powell 2016 Family Trust fbo Ryan J. identified by CDC–2016–0074 and Elberton, Georgia, to acquire 100 Powell; and James R. Powell 2016 docket number NIOSH 156–B, by either percent of the outstanding voting stock Family Trust, all of Dayton, Ohio all to of the two following methods: of Independence Bank of Georgia, become savings and loan holding • Federal eRulemaking Portal: Braselton, Georgia. companies by acquiring of more than 25 www.regulations.gov. Follow the Board of Governors of the Federal Reserve percent of the total equity of Liberty instructions for submitting comments. System, August 5, 2016. Capital, Inc., Wilmington, Ohio, and • Mail: National Institute for Margaret McCloskey Shanks, thereby acquire control of Liberty Occupational Safety and Health, NIOSH Deputy Secretary of the Board. Savings Bank, FSB, Wilmington, Ohio. Docket Office, 1090 Tusculum Avenue, [FR Doc. 2016–19059 Filed 8–10–16; 8:45 am] Board of Governors of the Federal Reserve MS C–34, Cincinnati, OH 45226. BILLING CODE 6210–01–P System, August 5, 2016. Instructions: All information received Margaret McCloskey Shanks, in response to this notice must include Deputy Secretary of the Board. the agency name and docket number FEDERAL RESERVE SYSTEM [CDC–2016–0074; NIOSH 156–B]. All [FR Doc. 2016–19060 Filed 8–10–16; 8:45 am] relevant comments received will be BILLING CODE 6210–01–P Formations of, Acquisitions by, and posted without change to Mergers of Savings and Loan Holding www.regulations.gov, including any Companies personal information provided. For DEPARTMENT OF HEALTH AND access to the docket to read background The companies listed in this notice HUMAN SERVICES have applied to the Board for approval, documents or comments received, go to pursuant to the Home Owners’ Loan Act Centers for Disease Control and www.regulations.gov. (12 U.S.C. 1461 et seq.) (HOLA), Prevention FOR FURTHER INFORMATION CONTACT: G. Regulation LL (12 CFR part 238), and Scott Dotson, NIOSH, Education and [Docket Number CDC–2016–0074; NIOSH Information Division, Robert A. Taft Regulation MM (12 CFR part 239), and 156–B] all other applicable statutes and Laboratories, 1090 Tusculum Avenue, regulations to become a savings and National Institute for Occupational MS C–32, Cincinnati, Ohio 45226, loan holding company and/or to acquire Safety and Health Draft Immediately telephone (513) 533–8540 (not a toll free the assets or the ownership of, control Dangerous to Life or Health (IDLH) number). of, or the power to vote shares of a Value Profile for Peracetic Acid (CAS SUPPLEMENTARY INFORMATION: The savings association and nonbanking #79–21–0) proposed IDLH value and draft IDLH companies owned by the savings and Value Profile for peracetic acid is based loan holding company, including the AGENCY: National Institute for on the process outlined in the NIOSH companies listed below. Occupational Safety and Health Current Intelligence Bulletin 66— The applications listed below, as well (NIOSH) of the Centers for Disease Derivation of Immediately Dangerous to as other related filings required by the Control and Prevention (CDC), Life or Health (IDLH) Values http:// Board, are available for immediate Department of Health and Human www.cdc.gov/niosh/docs/2014-100/ inspection at the Federal Reserve Bank Services (HHS). pdfs/2014-100.pdf. The draft IDLH indicated. The application also will be ACTION: Notice of draft document for Value Profile was developed to provide available for inspection at the offices of public comment. the scientific rationale behind the the Board of Governors. Interested derivation of the proposed IDLH value persons may express their views in SUMMARY: On May 1, 2015, the Director for peracetic acid. This includes a writing on the standards enumerated in of the National Institute for detailed summary of the health hazards the HOLA (12 U.S.C. 1467a(e)). If the Occupational Safety and Health of acute exposure to high airborne proposal also involves the acquisition of (NIOSH) of the Centers for Disease concentrations of peracetic acid and the a nonbanking company, the review also Control and Prevention (CDC), rationale for the proposed IDLH value includes whether the acquisition of the published a notice in the Federal for peracetic acid. nonbanking company complies with the Register [80 FR 24930] announcing the To facilitate the review of this draft standards in section 10(c)(4)(B) of the availability of and a request for document, NIOSH requests that the HOLA (12 U.S.C. 1467a(c)(4)(B)). Unless comments for the draft immediately following questions be taken into otherwise noted, nonbanking activities dangerous to life or health (IDLH) values consideration: will be conducted throughout the and support technical documents, 1. Does this document clearly outline United States. entitled IDLH Values Profiles, for 14 the health hazards associated with acute Unless otherwise noted, comments chemicals. Written comments were to be (or short-term) exposures to peracetic regarding each of these applications received before the end of the comment acid? If not, what specific information is must be received at the Reserve Bank period on June 30, 2015. Due to missing from the document? indicated or the offices of the Board of subsequent requests from the public, 2. Are the rationale and logic behind Governors not later than September 6, this Notice announces that NIOSH is the derivation of an IDLH value for 2016. seeking further comments on the draft peracetic acid clearly explained? If not, A. Federal Reserve Bank of Cleveland IDLH Value Profile for peracetic acid what specific information is needed to (Nadine Wallman, Vice President) 1455 (CAS #79–21–0) http://www.cdc.gov/ clarify the basis of the IDLH value?
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3. Are the conclusions supported by ADDRESSES: To ensure that comments on access to the Internet may submit email the data? the information collection are received, requests for a single copy of the draft 4. Are the tables clear and OMB recommends that written manufactured food standards to OP- appropriate? comments be faxed to the Office of [email protected]. There are 42 State 5. Is the document organized Information and Regulatory Affairs, programs enrolled, in which each State appropriately? If not, what OMB, Attn: FDA Desk Officer, FAX: may receive up to $300,000 each year improvements are needed? 202–395–7285, or emailed to oira_ for a period of 5 years provided there is 6. Are you aware of any scientific data [email protected]. All significant conformance with the 10 reported in governmental publications, comments should be identified with the standards. databases, peer-reviewed journals, or OMB control number 0910–0601. Also In the first year of implementing the other sources that should be included include the FDA docket number found program standards, the State program within this document? in brackets in the heading of this document. conducts a baseline self-assessment to John Howard, determine if it meets the elements of Director, National Institute for Occupational FOR FURTHER INFORMATION CONTACT: FDA each standard. The State program Safety and Health, Centers for Disease Control PRA Staff, Office of Operations, Food should use the worksheets and forms and Prevention. and Drug Administration, Three White contained in the draft program [FR Doc. 2016–19051 Filed 8–10–16; 8:45 am] Flint North, 10A63, 11601 Landsdown standards; however, it can use alternate BILLING CODE 4163–19–P St., North Bethesda, MD 20852, forms that are equivalent. The State [email protected]. program maintains the documents and SUPPLEMENTARY INFORMATION: In verifies records required for each DEPARTMENT OF HEALTH AND compliance with 44 U.S.C. 3507, FDA standard. The information contained in HUMAN SERVICES has submitted the following proposed the documents must be current and fit- collection of information to OMB for for-use. If the State program fails to meet Food and Drug Administration review and clearance. all program elements and [Docket No. FDA–2013–N–0115] Manufactured Food Regulatory documentation requirements of a Program Standards—OMB Control standard, it develops a strategic Agency Information Collection Number 0910–0601—Extension improvement plan that includes the Activities; Submission for Office of following: (1) The individual program Management and Budget Review; In the Federal Register of July 20, element or documentation requirement Comment Request; Manufactured 2006 (71 FR 41221), FDA announced the of the standard that was not met, (2) Food Regulatory Program Standards availability of a draft document entitled improvements needed to meet the ‘‘Manufactured Food Regulatory program element or documentation AGENCY: Food and Drug Administration, Program Standards (MFRPS).’’ These requirement of the standard, and (3) HHS. program standards have since been projected completion dates for each ACTION: Notice. finalized and updated multiple times. task. The current standards are the SUMMARY: The Food and Drug framework that States should use to In the Federal Register of February Administration (FDA) is announcing design and manage their manufactured 12, 2016 (81 FR 7544), FDA published that a proposed collection of food programs. The current version a 60-day notice requesting public information has been submitted to the expires on September 30, 2016, and comment on the proposed collection of Office of Management and Budget FDA is proposing to update and submit information. We received two (OMB) for review and clearance under for issuance with a new expiration date. comments. However, these comments the Paperwork Reduction Act of 1995. The current and proposed versions of did not address the information collection. DATES: Fax written comments on the the standards are available at the docket collection of information by September number identified in brackets at the FDA estimates the burden of this 12, 2016. heading of this document. Persons with collection of information as follows:
TABLE 1—ESTIMATED ANNUAL REPORTING BURDEN 1
Number of Average Respondent Number of responses per Total annual burden per Total hours respondents respondent responses response
State Departments of Agriculture or Health ...... 42 1 42 376 15,792 1 There are no capital costs or operating and maintenance costs associated with this collection of information.
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The burden has been calculated as electronic or written comments by between 9 a.m. and 4 p.m., Monday 376 hours per respondent. This burden September 12, 2016. through Friday. • was determined by capturing the ADDRESSES: You may submit comments Confidential Submissions—To average amount of time for each as follows: submit a comment with confidential respondent to assess the current state of information that you do not wish to be the program and work toward Electronic Submissions made publicly available submit your implementation of each of the 10 Submit electronic comments in the comments only as a written/paper standards contained in MFRPS. The following way: submission. You should submit two hours per respondent will change as • Federal eRulemaking Portal: http:// copies total. One copy will include the accounted for in the continuing www.regulations.gov. Follow the information you claim to be confidential improvement and self-sufficiency of the instructions for submitting comments. with a heading or cover note that states program. Comments submitted electronically, ‘‘THIS DOCUMENT CONTAINS Dated: August 8, 2016. including attachments, to http:// CONFIDENTIAL INFORMATION.’’ The Agency will review this copy, including Jeremy Sharp, www.regulations.gov will be posted to the docket unchanged. Because your the claimed confidential information, in Deputy Commissioner for Policy, Planning, its consideration of comments. The Legislation and Analysis. comment will be made public, you are second copy, which will have the [FR Doc. 2016–19165 Filed 8–10–16; 8:45 am] solely responsible for ensuring that your comment does not include any claimed confidential information BILLING CODE 4164–01–P confidential information that you or a redacted/blacked out, will be available third party may not wish to be posted, for public viewing and posted on http:// www.regulations.gov. Submit both DEPARTMENT OF HEALTH AND such as medical information, your or copies to the Division of Dockets HUMAN SERVICES anyone else’s Social Security number, or confidential business information, such Management. If you do not wish your Food and Drug Administration as a manufacturing process. Please note name and contact information to be that if you include your name, contact made publicly available, you can [Docket No. FDA–2016–D–0971] information, or other information that provide this information on the cover sheet and not in the body of your Infectious Disease Next Generation identifies you in the body of your comments and you must identify this Sequencing Based Diagnostic comments, that information will be information as ‘‘confidential.’’ Any Devices: Microbial Identification and posted on http://www.regulations.gov. information marked as ‘‘confidential’’ Detection of Antimicrobial Resistance • If you want to submit a comment will not be disclosed except in and Virulence Markers; Draft Guidance with confidential information that you accordance with 21 CFR 10.20 and other for Industry and Food and Drug do not wish to be made available to the applicable disclosure law. For more Administration Staff; Extension of public submit the comment as a written/ information about FDA’s posting of Comment Period paper submission and in the manner detailed (see ‘‘Written/Paper comments to public dockets, see 80 FR AGENCY: Food and Drug Administration, Submissions’’ and ‘‘Instructions’’). 56469, September 18, 2015, or access HHS. the information at: http://www.fda.gov/ Written/Paper Submissions ACTION: Notice; extension of comment regulatoryinformation/dockets/ period. Submit written/paper submissions as default.htm. follows: Docket: For access to the docket to SUMMARY: The Food and Drug • Mail/Hand delivery/Courier (for read background documents or the Administration (FDA or we) is written/paper submissions): Division of electronic and written/paper comments extending the comment period for the Dockets Management (HFA–305), Food received, go to http:// document entitled ‘‘Infectious Disease and Drug Administration, 5630 Fishers www.regulations.gov and insert the Next Generation Sequencing Based Lane, Rm. 1061, Rockville, MD 20852. docket number, found in brackets in the Diagnostic Devices: Microbial • For written/paper comments heading of this document, into the Identification and Detection of submitted to the Division of Dockets ‘‘Search’’ box and follow the prompts Antimicrobial Resistance and Virulence Management, FDA will post your and/or go to the Division of Dockets Markers; Draft Guidance for Industry comment, as well as any attachments, Management, 5630 Fishers Lane, Rm. and Food and Drug Administration except for information submitted, 1061, Rockville, MD 20852. Staff,’’ that appeared in the Federal marked and identified, as confidential, FOR FURTHER INFORMATION CONTACT: Register of May 13, 2016. In the if submitted as detailed in Heike Sichtig, Center for Devices and document, FDA requested comments on ‘‘Instructions.’’ Radiological Health, Food and Drug FDA’s recommendations to assist Instructions: All submissions received Administration, 10903 New Hampshire industry in designing studies to must include the Docket No. FDA– Ave., Bldg. 66, Rm. 4526, Silver Spring, establish the analytical and clinical 2016–D–0971 for ‘‘Infectious Disease MD 20993–0002, Heike.Sichtig@ performance characteristics of infectious Next Generation Sequencing Based fda.hhs.gov. disease next generation sequencing- Diagnostic Devices: Microbial SUPPLEMENTARY INFORMATION: based diagnostic devices for microbial Identification and Detection of identification and detection of Antimicrobial Resistance and Virulence I. Background antimicrobial resistance and virulence Markers; Draft Guidance for Industry In the Federal Register of May 13, markers. The Agency is taking this and Food and Drug Administration 2016 (81 FR 29869), FDA published a action in response to a request for an Staff.’’ Received comments will be document with a 90-day comment extension to allow interested persons placed in the docket and, except for period to request comments on the types additional time to submit comments. those submitted as ‘‘Confidential of studies the FDA recommends to DATES: FDA is extending the comment Submissions,’’ publicly viewable at support a premarket application of period on the document published May http://www.regulations.gov or at the Infectious Disease Next Generation 13, 2016 (81 FR 29869). Submit either Division of Dockets Management (NGS) Sequencing Based Diagnostic
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Devices (Infectious Disease NGS Dx staff direction for processing appeals at courts is available after administrative devices). Specifically, FDA recommends the OMHA level of adjudication. remedies within SSA and HHS have Infectious Disease NGS Dx devices that FOR FURTHER INFORMATION CONTACT: been exhausted. employ targeted or agnostic Amanda Axeen, by telephone at (571) Sections 1869, 1155, 1876(c)(5)(B), (metagenomics) sequencing to identify 777–2705, or by email at 1852(g)(5), and 1860D–4(h) of the Act the presence or absence of infectious [email protected]. are implemented through the disease organisms, and/or detect the SUPPLEMENTARY INFORMATION: regulations at 42 CFR part 405 subparts presence of absence of antimicrobial I and J; part 417, subpart Q; part 422, resistance and virulence markers. I. Background subpart M; part 423, subparts M and U; The Agency received requests for a The Office of Medicare Hearings and and part 478, subpart B. As noted above, 30-day extension of the comment period Appeals (OMHA), a staff division within OMHA administers the nationwide for the document. Each request the Office of the Secretary of the U.S. Administrative Law Judge hearing conveyed concern that the current 90- Department of Health and Human program in accordance with these day comment period does not allow Services (HHS), administers the statutes and applicable regulations. As sufficient time to develop a meaningful nationwide Administrative Law Judge part of that effort, OMHA is establishing or thoughtful response to the document hearing program for Medicare claim, a manual, the OMHA Case Processing on ‘‘Infectious Disease Next Generation organization and coverage Manual (OCPM). Through the OCPM, Sequencing Based Diagnostic Devices: determination, and entitlement appeals the OMHA Chief Administrative Law Microbial Identification and Detection under sections 1869, 1155, Judge establishes the day-to-day of Antimicrobial Resistance and 1876(c)(5)(B), 1852(g)(5), and 1860D– procedures for carrying out adjudicative Virulence Markers; Draft Guidance for 4(h) of the Social Security Act (the Act). functions, in accordance with Industry and Food and Drug OMHA ensures that Medicare applicable statutes, regulations and Administration Staff.’’ beneficiaries and the providers and OMHA directives. The OCPM provides FDA has considered the request and suppliers that furnish items or services direction for processing appeals at the is extending the comment period for the to Medicare beneficiaries, as well as OMHA level of adjudication for document on ‘‘Infectious Disease Next Medicare Advantage Organizations Medicare Part A and B claims; Part C Generation Sequencing Based (MAOs), Medicaid State Agencies, and organization determinations; Part D Diagnostic Devices: Microbial applicable plans have a fair and coverage determinations; and SSA Identification and Detection of impartial forum to address eligibility and entitlement, Part B late Antimicrobial Resistance and Virulence disagreements with Medicare coverage enrollment penalty, and IRMAA Markers; Draft Guidance for Industry and payment determinations made by determinations. and Food and Drug Administration Medicare contractors, MAOs, or Part D Section 1871(c) of the Act requires Staff’’ for 30 days, until September 10, Plan Sponsors (PDPSs), and that we publish a list of all Medicare 2016. The Agency believes that a 30-day determinations related to Medicare manual instructions, interpretive rules, extension allows adequate time for eligibility and entitlement, Part B late statements of policy, and guidelines of interested persons to submit comments enrollment penalty, and income-related general applicability not issued as without significantly delaying monthly adjustment amounts (IRMAA) regulations at least every 3 months in regulation on these important issues. made by the Social Security the Federal Register. Administration (SSA). Dated: August 5, 2016. II. Format for the Quarterly Issuance The Medicare claim, organization and Leslie Kux, Notices Associate Commissioner for Policy. coverage determination appeals [FR Doc. 2016–19109 Filed 8–10–16; 8:45 am] processes consist of four levels of This quarterly notice provides the administrative review, and a fifth level specific updates to the OCPM that have BILLING CODE 4164–01–P of review with the Federal district occurred in the 3-month period. A courts after administrative remedies hyperlink to the available chapters on DEPARTMENT OF HEALTH AND under HHS regulations have been the OMHA Web site is provided below. HUMAN SERVICES exhausted. The first two levels of review The OMHA Web site contains the most are administered by the Centers for current, up-to-date chapters and [OMHA–1601–N] Medicare & Medicaid Services (CMS) revisions to chapters, and will be and conducted by Medicare contractors available earlier than we publish our Medicare Program; Administrative Law for claim appeals, by MAOs and an quarterly notice. We believe the OMHA Judge Hearing Program for Medicare independent review entity for Part C Web site list provides more timely Claim and Entitlement Appeals; organization determination appeals, or access to the current OCPM chapters for Quarterly Listing of Program by PDPSs and an independent review those involved in the Medicare claim, Issuances—March Through June 2016 entity for Part D coverage determination organization and coverage AGENCY: Office of Medicare Hearings appeals. The third level of review is determination and entitlement appeals and Appeals (OMHA), HHS. administered by OMHA and conducted processes. We also believe the Web site ACTION: Notice. by Administrative Law Judges. The offers the public a more convenient tool fourth level of review is administered by for real time access to current OCPM SUMMARY: This quarterly notice lists the the HHS Departmental Appeals Board provisions. In addition, OMHA has a OMHA Case Processing Manual (OCPM) (DAB) and conducted by the Medicare listserv to which the public can manual instructions that were published Appeals Council. In addition, OMHA subscribe to receive immediate from March through June, 2016. This and the DAB administer the second and notification of any updates to the manual standardizes the day-to-day third levels of appeal, respectively, for OMHA Web site. This listserv avoids procedures for carrying out adjudicative Medicare eligibility, entitlement, Part B the need to check the OMHA Web site, functions, in accordance with late enrollment penalty, and IRMAA as update notifications are sent to applicable statutes, regulations and reconsiderations made by SSA; a fourth subscribers as they occur. If accessing OMHA directives, and gives OMHA level of review with the Federal district the OMHA Web site proves to be
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difficult, the contact person listed above DEPARTMENT OF HEALTH AND The meeting will be closed to the can provide the information. HUMAN SERVICES public in accordance with the provisions set forth in sections III. How To Use the Notice National Institutes of Health 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The contract proposals and This notice lists the OCPM chapters National Institute of Allergy and and subjects published during the the discussions could disclose Infectious Diseases; Notice of Closed confidential trade secrets or commercial quarter covered by the notice so the Meeting reader may determine whether any are property such as patentable material, of particular interest. We expect this Pursuant to section 10(d) of the and personal information concerning notice to be used in concert with future Federal Advisory Committee Act, as individuals associated with the contract published notices. The OCPM can be amended (5 U.S.C. App.), notice is proposals, the disclosure of which accessed at http://www.hhs.gov/omha/ hereby given of the following meeting. would constitute a clearly unwarranted OMHA_Case_Processing_Manual/ The meeting will be closed to the invasion of personal privacy. index.html. public in accordance with the Name of Committee: National Institute of provisions set forth in sections Allergy and Infectious Diseases Special IV. OCPM Releases for March Through 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Emphasis Panel; NIAID Peer Review Meeting. June 2016 as amended. The grant applications and Date: September 7, 2016. the discussions could disclose Time: 10:00 a.m. to 2:00 p.m. The OCPM is used by OMHA Agenda: To review and evaluate contract adjudicators and staff to administer the confidential trade secrets or commercial proposals. OMHA program. It offers day-to-day property such as patentable material, Place: National Institutes of Health, 3G61, operating instructions, policies, and and personal information concerning 5601 Fishers Lane, Rockville, MD 20892 procedures based on statutes and individuals associated with the grant (Telephone Conference Call). regulations, and OMHA directives. applications, the disclosure of which Contact Person: Travis J. Taylor, Ph.D., would constitute a clearly unwarranted Scientific Review Officer, Scientific Review The following is a list and description invasion of personal privacy. Program, Division of Extramural Activities, of new OCPM provisions and the Room 3G62B, 5601 Fishers Lane, MSC 9823, subject matter. For future quarterly Name of Committee: National Institute of Bethesda, MD 20892–9823, (240) 669–5082, notices, we will list only the specific Allergy and Infectious Diseases Special [email protected]. Emphasis Panel NIAID SBIR Phase II Clinical (Catalogue of Federal Domestic Assistance updates to the list of manual provisions Trial Implementation Cooperative Agreement Program Nos. 93.855, Allergy, Immunology, that have occurred in the covered 3- (U44). and Transplantation Research; 93.856, month period. This information is Date: September 8, 2016. Microbiology and Infectious Diseases available on our Web site at http:// Time: 1:00 a.m. to 4:00 p.m. Research, National Institutes of Health, HHS) www.hhs.gov/omha/OMHA_Case_ Agenda: To review and evaluate grant Processing_Manual/index.html. applications. Dated: August 4, 2016. Place: National Institutes of Health Room Melanie J. Gray, OCPM Division II: Part A/B Claim 3G31B, 5601 Fishers Lane, Rockville, MD Program Analyst, Office of Federal Advisory Determinations 20892 (Telephone Conference Call). Committee Policy. Contact Person: James T. Snyder, Ph.D., Chapter 6, Pre-Hearing Case Scientific Review Officer Scientific Review [FR Doc. 2016–19046 Filed 8–10–16; 8:45 am] Development. This new chapter Program, Division of Extramural Activities/ BILLING CODE 4140–01–P describes the pre-hearing case Room 3G31B, National Institutes of Health, development process for requests for NIAID, 5601 Fishers Lane MSC 9823, hearing on Medicare Part A and Part B Rockville, MD 20892, (240) 669–5060, DEPARTMENT OF HEALTH AND reconsiderations issued by Qualified [email protected]. HUMAN SERVICES (Catalogue of Federal Domestic Assistance Independent Contractors (QICs) and National Institutes of Health Quality Improvement Organizations Program Nos. 93.855, Allergy, Immunology, and Transplantation Research; 93.856, (QIOs), and escalations of requests for Microbiology and Infectious Diseases National Institute of Dental & reconsideration by a QIC. The pre- Research, National Institutes of Health, HHS) Craniofacial Research; Notice of hearing case development process helps Closed Meeting identify and address evidentiary issues Dated: August 5, 2016. prior to the hearing to avoid delays and Anna Snouffer, Pursuant to section 10(d) of the helps to ensure legal requirements Deputy Director, Office of Federal Advisory Federal Advisory Committee Act, as related to new evidence are observed. Committee Policy. amended (5 U.S.C. App.), notice is The process also assists staff in [FR Doc. 2016–19045 Filed 8–10–16; 8:45 am] hereby given of the following meeting. determining whether a hearing is BILLING CODE 4140–01–P The meeting will be closed to the necessary for a given case. In addition, public in accordance with the the process guides OMHA staff on provisions set forth in sections processes available to facilitate the DEPARTMENT OF HEALTH AND 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., hearing process, such as identifying HUMAN SERVICES as amended. The grant applications and special needs for hearing participants, the discussions could disclose National Institutes of Health discovery, using experts, and confidential trade secrets or commercial property such as patentable material, conducting pre-hearing conferences. National Institute of Allergy and and personal information concerning Infectious Diseases; Notice of Closed Dated: July 15, 2016. individuals associated with the grant Meeting Jason M. Green, applications, the disclosure of which Chief Advisor, Office of Medicare Hearings Pursuant to section 10(d) of the would constitute a clearly unwarranted and Appeals. Federal Advisory Committee Act, as invasion of personal privacy. [FR Doc. 2016–18665 Filed 8–10–16; 8:45 am] amended (5 U.S.C. App.), notice is Name of Committee: National Institute of BILLING CODE 4152–01–P hereby given of the following meeting. Dental and Craniofacial Research Special
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Emphasis Panel; NIDCR Clinical Trial Contact Person: Tonya Scott, Scientific contained in the Purpose statement of Cooperative Agreement SEP. Program Analyst, Office of the Associate this notice. Date: August 24, 2016. Director of Data Science (ADDS), National DATES: Effective Date: The notice will be Time: 3:30 p.m. to 5:00 p.m. Institutes of Health, One Center Drive, Room Agenda: To review and evaluate grant 325, Bethesda, Maryland 20892, email: effective September 12, 2016, unless applications. [email protected], Telephone: 301–402– comments are received that would Place: National Institutes of Health, One 9817. result in a contrary determination. Democracy Plaza, 6701 Democracy Information is also available on the Office Comments Due Date: September 12, Boulevard, Bethesda, MD 20892. of the Associate Director for Data Science’s 2016. Contact Person: Latarsha J. Carithers, home page: https://datascience.nih.gov/index ADDRESSES: Interested persons are Ph.D., Program Director, Division of where an agenda and any additional invited to submit comments regarding Extramural Activities, NIDCR, 6701 information for the meeting will be posted this notice to the Rules Docket Clerk, Democracy Boulevard, Suite 672, Bethesda, when available. MD 20892, 301–594–4859, Office of General Counsel, Department [email protected]. Dated: August 5, 2016. of Housing and Urban Development, This notice is being published less than 15 Anna Snouffer, 451 Seventh Street SW., Room 10276, days prior to the meeting due to the timing Deputy Director, Office of Federal Advisory Washington, DC 20410–0500. limitations imposed by the review and Committee Policy. Communications should refer to the funding cycle. [FR Doc. 2016–19047 Filed 8–10–16; 8:45 am] above docket number and title. Faxed (Catalogue of Federal Domestic Assistance BILLING CODE 4140–01–P comments are not accepted. A copy of Program Nos. 93.121, Oral Diseases and each communication submitted will be Disorders Research, National Institutes of available for public inspection and Health, HHS) DEPARTMENT OF HOUSING AND copying between 8 a.m. and 5 p.m. Dated: August 5, 2016. URBAN DEVELOPMENT weekdays at the above address. Anna Snouffer, FOR FURTHER INFORMATION CONTACT: [Docket No. FR–5921–N–11] Deputy Director, Office of Federal Advisory Frieda B. Edwards, Acting Chief Privacy Officer, 451 Seventh Street SW., Room Committee Policy. The Privacy Act Of 1974, As Amended; 10139, Washington, DC 20410, [FR Doc. 2016–19044 Filed 8–10–16; 8:45 am] Notice of New HUD Certified Housing telephone number 202–402–6828 (this BILLING CODE 4140–01–P Counselor and Client Certificate of is not a toll-free number). Individuals Housing Counseling Database, System who are hearing- and speech-impaired of Records DEPARTMENT OF HEALTH AND may access this number via TTY by HUMAN SERVICES AGENCY: Office of the Assistance calling the Federal Relay Service at 800– Secretary for Housing, HUD. 877–8339 (this is a toll-free number). National Institutes of Health ACTION: New System of Records. SUPPLEMENTARY INFORMATION: Publication of this notice allows the Office of the Director; Notice of SUMMARY: The Department’s Office of Department to satisfy its reporting Meeting the Assistant Secretary for Housing, requirement and keep an up-to-date Federal Housing Commissioner is accounting of its system of records Notice is hereby given of a meeting of proposing to create a new system of publications. The new system of records the Big Data to Knowledge Multi- records, the HUD Certified Housing incorporates Federal privacy Council Working Group. Counselor and Client Certificate of requirements and HUD policy The teleconference meeting will be Housing Counseling Database. The requirements. The Privacy Act places on open to the public as indicated below. Office of the Assistant Secretary for Federal agencies principal Individuals who plan to attend and Housing, Federal Housing responsibility for compliance with its need assistance should notify the Commissioner provides support to a provisions, by requiring Federal contact person listed below in advance nationwide network of housing agencies to safeguard an individual’s of the meeting. counseling agencies that provide records against an invasion of personal Name of Working Group: Big Data to products and services to current and privacy; protect records contained in an Knowledge Multi-Council Working Group. prospective homeowners, homeowners agency system of records from Date: September 1, 2016. at risk of default, renters, and the unauthorized disclosure; ensure that the Open Session: 11:00 a.m.–12:00 p.m. homeless. Public Law 111–203 (2010) (Eastern Daylight Savings Time). records collected are relevant, Agenda: Discussion will review current Big amends section 106 of the Housing and necessary, current, and collected only Data to Knowledge (BD2K) activities and Urban Development Act of 1968 to for their intended use; and adequately newly proposed BD2K initiatives. Open improve the effectiveness of housing safeguard the records to prevent misuse session presentations include BD2K Update counseling services in HUD programs of such information. In addition, this and BD2K –Implementation of the Commons. by, among other things, requiring that notice demonstrates the Department’s Place: Teleconference, Call Number: 1– the entities and individual counselors focus on following industry best 877–668–4493, Passcode: 627 186 653. be certified by HUD as competent to practices to protect the personal privacy This meeting is open to the public but is provide such services. The new HUD of the individuals covered by this being held by teleconference only. No Certified Housing Counselor and Client system of records. physical meeting location is provided for any Certificate of Housing Counseling The system of records states the name interested individuals to listen to committee Database will allow the Department to and location of the record system, the discussions. Any individual interested in listening to the meeting discussions must collect and track certification authority for and manner of its call: 1–877–668–4493 and use Passcode: 627 examination requirements and client operations, the categories of individuals 186 653 for access to the meeting. housing counseling certificates issued that it covers, the type of records that it Closed Session: 12:10 p.m.–3:30 p.m. by counselors participating in the contains, the sources of the information Agenda: Discussion will focus on review of Department’s Housing Counseling in the records, the routine uses made of proposed Funding Plans for BD2K Funding Program. A detailed description of the the records, and the type of exemptions Opportunity Announcements. new system and its functions are in place for the records. Further, this
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notice includes the business addresses and Client Certificate of Housing Note: Certain records maintained by this of the Department officials who will Counseling Database are as follows: database pertain to individuals in their role inform interested persons of the (1) Individuals registering to access as a sole proprietorship under the procedures whereby they may gain Department’s Housing Counseling Program. HUD Certified Housing Counselor This information may reflect personal access to and/or request amendments to training: Legal first and last name, information; however, only the records that records pertaining to them. mailing address, telephone number, are personal, about the individual who is the Pursuant to the Privacy Act and the email address, and fax number (if subject of the record, are subject to the Office of Management and Budget applicable). Privacy Act. (OMB) guidelines, a report of this new (2) Individuals registering to access system of records was submitted to the HUD Housing Counselor AUTHORITY FOR MAINTENANCE OF THE SYSTEM: OMB, the Senate Committee on Certification Examination: Legal first Subtitle D of title XIV of the Dodd- Homeland Security and Governmental and last name, mailing address, Frank Wall Street Reform and Consumer Affairs, and the House Committee on telephone number, email address, fax Protection Act, Public Law 111–203, Oversight and Government Reform as number (if applicable), Social Security 124 Stat. 1376 (July 21, 2010); section instructed by paragraph 4c of Appendix number (SSN), and employer’s HUD 106 of the Housing and Urban l to OMB Circular No. A–130, ‘‘Federal Housing Counseling System (HCS) Development Act of 1968, 12 Agencies Responsibilities for number (if registrant’s employer is a U.S.C.§ 1701x; and the Housing and Maintaining Records About housing counseling agency participating Community Development Act of 1987, Individuals,’’ July 25, 1994 November in HUD’s Housing Counseling Program). 42 U.S.C. 3543, which authorizes HUD 28, 2000. Registrants have the option of providing to collect SSNs. Authority: 5 U.S.C. 552a; 88 Stat. 1896; 42 demographic information: Race, PURPOSE(S): U.S.C. 3535(d). ethnicity, gender and languages in The Dodd-Frank Wall Street Reform Dated: July 22, 2016. which counseling services are offered. and Consumer Protection Act amended Patricia A. Hoban-Moore, HUD is collecting information on section 106 of the HUD Act of 1968 to Senior Agency Official for Privacy. languages to assess the number of require that all homeownership and examinees that might benefit from rental housing counseling provided in SYSTEM OF RECORDS NO.: HSNG.SF/ certification examination training HC.01 connection with HUD programs be materials being available in other provided by a HUD Certified housing SYSTEM NAME: languages. Information for fee payment counselor. The proposed rule published HUD Certified Housing Counselor and will be collected by a third party vendor on September 13, 2013, set a timeframe Client Certificate of Housing Counseling and will include credit card number, for completing the certification Database. The systems impacted are the expiration date, and security code. examination. The final rule is under Housing Counseling System (F11), the (3) Individuals registering for HUD review and will address the timeframe Computerized Home Underwriting Certified Housing Counselor status or when published. HUD will announce Management System (F–17), the FHA for Agency Application Coordinator for the start date of the certification Connection (F–17C), the Single Family FHA Connection: Legal first and last examination in a separate Federal Housing Enterprise Data Warehouse name, mailing address, telephone Register notice. The certification (D64A)), and the HUD Certified Housing number, email address, fax number (if examination requires that an individual Counselor and Client Certificate of applicable), Social Security number demonstrate competency by passing a Housing Counseling Database, which is (SSN), HUD Housing Counselor standardized written examination a module of F11. Certification System ID number, covering six major areas of housing mother’s maiden name, and employer’s counseling. These areas include: (1) SYSTEM LOCATION: HUD Housing Counseling System (HCS) Financial management; (2) property The database is physically located at ID number, and verification of maintenance; (3) responsibilities of the Department of Housing and Urban employing agency’s name. homeownership and tenancy; (4) fair Development, 451 Seventh Street SW., (4) Examination Information: Scores housing laws and requirements; (5) Washington, DC 20410, and accessed by from housing counselor certification housing affordability; and (6) avoidance HUD field offices with authorized examination list of all test-takers who of, and responses to, rental and access. Records are maintained and pass the certification examination. mortgage delinquency and avoidance of transmitted to this database from the (5) Client Certificate of Housing eviction and mortgage default. In virtual environment of the service Counseling: Legal first and last name addition to passing the certification providers under contract with HUD. and address of the housing counseling examination, individuals must work for CATEGORIES OF INDIVIDUALS COVERED BY THE client receiving counseling services a participating agency to become a HUD SYSTEM: from an agency participating in HUD’s Certified Counselor. The new database Individuals who intend to access the Housing Counseling Program; legal first will allow the Department to track examination or training materials and last name and the Counselor ID housing counselor certifications that offered by HUD in association with the number of the counselor completing the will be issued under the Department’s certification requirements, whether or client certificate of housing counseling; Housing Counseling Program, including not they become certified; individuals name, address, telephone number, the initial application/issuance of the seeking HUD certified housing Employer Identification Number (EIN), HUD certified housing counselor counselor certification; or housing and HCS ID number of the agency certificate, any reissuance due to counseling clients receiving housing participating in HUD’s Housing changes in employment status, and any counseling from an agency participating Counseling Program; date and type of revocations of certification. This system in HUD’s Housing Counseling Program. counseling service received; fees may also be used to verify the collected or waived; and whether participating agency’s compliance with CATEGORIES OF RECORDS IN THE SYSTEM: counseling or education occurred in- HUD’s Housing Counseling Program The categories of records collected by person or remotely (telephone or requirements. Other statutory changes to the HUD Certified Housing Counselor Internet). improve the effectiveness of housing
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counseling include increasing the compromise, there is a risk of harm to SYSTEM MANAGER(S) AND ADDRESS: breadth of counseling services so that economic or property interests, identity Danberry Carmon, Associate Deputy they are comprehensive with respect to theft or fraud, or harm to the security or Assistant Secretary, Office of Housing homeownership and rental counseling integrity of systems or programs Counseling, 451 Seventh Street SW., and issuing client Certificates of (whether maintained by HUD or another Room 9224, Washington, DC 20410. Housing Counseling to verify counseling agency or entity) that rely upon the requirements for FHA and other compromised information; and NOTIFICATION AND RECORD ACCESS PROCEDURES: Federal, State, and local programs, as (c) HUD determines that the For Information, assistance, or applicable. HUD’s Housing Counseling disclosure made to such agencies, inquiries about the existence of records Program currently provides entities, and persons is reasonably contact, Frieda B. Edwards, Acting Chief comprehensive homeownership and necessary to assist in connection with Privacy Officer, 451 Seventh Street SW., rental counseling. As noted in the HUD’s efforts to respond to the Room 10139, Washington, DC 20410, proposed rule published on September suspected or confirmed compromise telephone number 202–402–6828. When 13, 2013, an individual counselor, in and prevent, minimize, or remedy such seeking records about yourself from this contrast to multiple counseling harm for purposes of facilitating system of records or any other HUD agencies, will have to show competency responses and remediation efforts in the system of records, your request must (through passage of an examination) in event of a data breach. identifying and understanding the conform with the Privacy Act breadth of homeownership and rental (3) To third party fee collection regulations set forth in 24 CFR part 16. counseling services. Currently, a service for payment of examination fees. You must first verify your identity by potential homebuyer or homeowner is providing your full name, current POLICIES AND PRACTICES FOR STORING, address, and date and place of birth. likely to seek a housing counseling RETRIEVING, ACCESSING, RETAINING, AND agency that specializes in a specific area DISPOSING OF RECORDS IN THE SYSTEM: You must sign your request, and your and receive comprehensive counseling signature must either be notarized or by a counselor in that specific area. As Storage: Records in this system are submitted under 28 U.S.C. 1746, a law a result of increasing the breadth of stored electronically. The records may that permits statements to be made counseling service knowledge, a be stored on magnetic disc, tape, and under penalty of perjury as a substitute housing counselor providing counseling digital media. There are no hardcopy for notarization. In addition, your on a specific area requested by the client records produced that require additional request should: would also be trained to identify cross- storage. (1) Explain why you believe HUD cutting issues that a client may not have would have information on you. identified when seeking out a specific SAFEGUARDS: (2) Identify which office of HUD you counselor or during the intake process Access to electronic systems is by believe has the records about you. by the housing counseling agency. In password and code identification card (3) Specify when you believe the addition, certifying individual and is limited to authorized users. There records would have been created. counselors may further enhance the are no hardcopy records produced that (4) Provide any other information that high regard of agencies and counselors require an additional safeguard. will help the Freedom of Information participating in HUD’s Housing Act (FOIA) staff determine which HUD Counseling Program. RETRIEVABILITY: office may have responsive records. If your request is seeking records ROUTINE USES OF RECORDS MAINTAINED IN THE Electronic records are retrieved by SYSTEM, INCLUDING CATEGORIES OF USERS AND name (first and last), agency HCS pertaining to another living individual, THE PURPOSES OF SUCH USES: number, employer, and system ID you must obtain a statement from that In addition to those disclosures number. There are no hardcopy records individual certifying their agreement for generally permitted under 5 U.S.C. produced that require additional you to access their records. Without the 552a(b) of the Privacy Act, all or a retrieval. above information, HUD may not be portion of the records or information able to conduct an effective search, and contained in this system may be RETENTION AND DISPOSAL: your request may be denied due to lack disclosed outside HUD as a routine use of specificity or lack of compliance with The records that reside in the system applicable regulations. pursuant to 5 U.S.C. 552a(b)(3), as will be kept for 10 years after the final follows: action is taken on the file, document, CONTESTING RECORD PROCEDURES: (1) To appropriate agencies, entities, and/or transaction. Longer retention is and persons to the extent that such The Department’s rules for contesting authorized if required for business use contents of records and appealing initial disclosures are compatible with the (Reference: GRS 1.2 DAA–GRS–2013– purpose for which the records in this denials appear in 24 CFR part 16.3, 0008–0001). After the record retention ‘‘Procedures for Inquiries.’’ Additional system were collected, as set forth by requirements have been met (a 1 assistance may be obtained by Appendix I —HUD’s Routine Uses minimum of 10 years), the data and Inventory Notice, published in the contacting Frieda B. Edwards, Acting records can be purged or deleted from Chief Privacy Officer, 451 Seventh Federal Register. the system. If paper records are (2) To appropriate agencies, entities, Street SW., Room 10139, Washington, generated from the system, they can be and persons when: DC 20410, or the HUD Departmental (a) HUD suspects or has confirmed archived at the local Federal Records Privacy Appeals Officer, Office of that the security or confidentiality of Center after the final action or General Counsel, Department of information in a system of records has transaction has taken place. Housing and Urban Development, 451 been compromised; Accordingly, paper records will be Seventh Street SW., Room 10110, (b) HUD has determined that, as a destroyed by burning of shredding, and Washington, DC 20410. result of the suspected or confirmed electronic records will be destroyed according to NIST Special Publication RECORD SOURCE CATEGORIES: 1 http://portal.hud.gov/hudportal/documents/ 800–88, ‘‘Guidelines for Media (1) Data is provided by State and huddoc?id=append1.pdf. Sanitization.’’ tribal entities, or others who provide
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Federal certification data upon which regulations in the Code of Federal be available for public inspection, by the housing counseling certification is Regulations (CFR) at 50 CFR 17, the Act appointment, during normal business based. provides for certain permits, and hours at the address listed in the (2) Data is provided by the requesting requires that we invite public comment ADDRESSES section. applicant at the time of their request for before issuing these permits for Before including your address, phone housing counseling certification. This endangered species. number, email address, or other data is generated in the processing of A permit granted by us under section personal identifying information in your the homeownership and rental housing 10(a)(1)(A) of the Act authorizes the comment, you should be aware that counseling certification process. permittee to conduct activities your entire comment—including your (including take or interstate commerce) personal identifying information—may SYSTEMS EXEMPTED FROM CERTAIN PROVISIONS with respect to U.S. endangered or be made publicly available at any time. OF THE ACT: threatened species for scientific While you can ask us in your comment None. purposes or enhancement of to withhold your personal identifying [FR Doc. 2016–19134 Filed 8–10–16; 8:45 am] propagation or survival. Our regulations information from public review, we BILLING CODE 4210–67–P implementing section 10(a)(1)(A) of the cannot guarantee that we will be able to Act for these permits are found at 50 do so. CFR 17.22 for endangered wildlife Authority DEPARTMENT OF THE INTERIOR species, 50 CFR 17.32 for threatened wildlife species, 50 CFR 17.62 for We provide this notice under section Fish and Wildlife Service endangered plant species, and 50 CFR 10 of the Act (16 U.S.C. 1531 et seq.). [FWS–R1–ES–2016–N134; 17.72 for threatened plant species. Dated: August 3, 2016. FXES11130100000–167–FF01E00000] Applications Available for Review and Stephen J. Zylstra, Comment Acting Regional Director, Pacific Region, U.S. Endangered Species; Recovery Permit Fish and Wildlife. Applications We invite local, State, and Federal agencies and the public to comment on [FR Doc. 2016–19089 Filed 8–10–16; 8:45 am] AGENCY: Fish and Wildlife Service, the following applications. Please refer BILLING CODE 4333–15–P Interior. to the permit number for the application ACTION: Notice of availability; request when submitting comments. DEPARTMENT OF THE INTERIOR for comments. Documents and other information submitted with these applications are U.S. Geological Survey SUMMARY: We, the U.S. Fish and available for review by request from the Wildlife Service, invite the public to Program Manager for Restoration and [GX16EN05ESB0500] comment on the following applications Endangered Species Classification at the for recovery permits to conduct address listed in the ADDRESSES section Agency Information Collection activities with the purpose of enhancing of this notice, subject to the Activities: Request for Comments the survival of endangered species. The requirements of the Privacy Act (5 AGENCY: U.S. Geological Survey (USGS), Endangered Species Act of 1973, as U.S.C. 552a) and the Freedom of Interior. amended (Act), prohibits certain Information Act (5 U.S.C. 552). activities with endangered species ACTION: Notice of revision of a currently unless a Federal permit allows such Permit Number: TE–09155B approved information collection, (1028– 0096). activity. The Act also requires that we Applicant: Renee Robinette Ha, invite public comment before issuing University of Washington, Seattle, SUMMARY: We (the U.S. Geological such permits. Washington Survey) are notifying the public that we DATES: To ensure consideration, please The applicant requests a permit have submitted to the Office of send your written comments by amendment to take (collect blood Management and Budget (OMB) the September 12, 2016. samples and attach radio transmitters) information collection request (ICR) ADDRESSES: Program Manager, Mariana crow (Corvus kubaryi) in described below. To comply with the Restoration and Endangered Species conjunction with survey and population Paperwork Reduction Act of 1995 (PRA) Classification, Ecological Services, U.S. monitoring activities on the island of and as part of our continuing efforts to Fish and Wildlife Service, Pacific Rota, Commonwealth of the Northern reduce paperwork and respondent Regional Office, 911 NE. 11th Avenue, Mariana Islands, for the purpose of burden, we invite the general public and Portland, OR 97232–4181. Please refer enhancing the species’ survival. other Federal agencies to take this to the permit number for the application opportunity to comment on this ICR. when submitting comments. Permit Number: TE–02971C This collection is scheduled to expire FOR FURTHER INFORMATION CONTACT: Applicant: Stephen Weller, University of on August 31, 2016. Colleen Henson, Fish and Wildlife California, Irvine, California DATES: To ensure that your comments Biologist, at the above address, or by The applicant requests a new recovery on this ICR are considered, OMB must telephone (503–231–6131) or fax (503– permit to remove and reduce to receive them on or before September 12, 231–6243). possession (collect leaf cuttings) 2016. SUPPLEMENTARY INFORMATION: Schiedea hawaiiensis (ma‘oli‘oli) on the ADDRESSES: Please submit written comments on this information Background island of Hawaii in conjunction with genetic research for the purpose of collection directly to the Office of The Act (16 U.S.C. 1531 et seq.) enhancing the species’ survival. Management and Budget (OMB), Office prohibits certain activities with respect of Information and Regulatory Affairs, to endangered and threatened species Public Availability of Comments Attention: Desk Officer for the unless a Federal permit allows such All comments and materials we Department of the Interior, via email: activity. Along with our implementing receive in response to this request will ([email protected]); or
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by fax (202) 395–5806; and identify your proposals for a maximum of three CSCs Please note that comments submitted submission with ‘OMB Control Number in any year, and to receive an average in response to this notice are a matter 1028–0028 Department of the Interior of five proposals per CSC-request, for a of public record. Before including your Regional Climate Science Centers’. total of fifteen proposals in any single personal mailing address, phone Please also forward a copy of your year. USGS expects to enter into hosting number, email address, or other comments and suggestions on this agreements with a minimum of eight personally identifiable information in information collection to the CSC host institutions. Thus USGS your comment, you should be aware Information Collection Clearance would request quarterly financial that your entire comment, including Officer, U.S. Geological Survey, 12201 statements and annual progress reports your personally identifiable Sunrise Valley Drive MS 807, Reston, covering host agreements from eight information, may be made publicly VA 20192 (mail); (703) 648–7195 (fax); institutions. In addition, USGS expects available at any time. While you can ask or [email protected] (email). to have in place approximately forty us and the OMB in your comment to Please reference ‘OMB Information cooperative agreements per year withhold your personal identifying Collection 1028–0028 Department of the addressing specific research projects information from public review, we Interior Regional Climate Science funded under these hosting agreements. cannot guarantee that it will be done. Centers’ in all correspondence. Each of these 40 agreements requires Douglas Beard, FOR FURTHER INFORMATION CONTACT: quarterly financial statements and one Chief of National Climate Change and Robin O’Malley, National Climate annual progress report. Estimated Time per Response: Each Wildlife Science Center. Change and Wildlife Science Center, [FR Doc. 2016–19110 Filed 8–10–16; 8:45 am] U.S. Geological Survey, 12201 Sunrise proposal for CSC hosting is expected to BILLING CODE 4338–11–P Valley Drive, Mail Stop 516, Reston, VA take 200 hours to complete. The time 20192 (mail); 703–648–4086 (phone); or required to complete quarterly and [email protected] (email). You may annual reports for any specific host INTERNATIONAL TRADE also find information about this ICR at cooperative agreement or research COMMISSION www.reginfo.gov. project agreement is expected to total 2.5 hours per report. SUPPLEMENTARY INFORMATION: [Investigation No. 337–TA–993] Estimated Annual Burden Hours: A I. Abstract maximum of 3,000 hours in years when Certain Overflow and Drain The U.S. Geological Survey (USGS) proposals are requested, and 1 hours in Assemblies for Bathtubs and manages eight Department of the those years with only quarterly and Components Thereof; Notice of the Interior (DOI) Climate Science Centers annual reporting. Commission’s Determination Not To (CSC). Each CSC involves a cooperative Estimated Reporting and Review an Initial Determination agreement with a host institution. The Recordkeeping ‘‘Non-Hour Cost’’ Terminating Better Enterprise Co. Ltd. initial host institution agreements will Burden: There are no ‘‘non-hour cost’’ From the Investigation; Issuance of be re-competed, requiring collection of burdens associated with this collection Consent Order; Termination of the information from potential host of information. Investigation Public Disclosure Statement: The PRA institutions. In addition, this (44 U.S.C. 3501, et seq.) provides that an AGENCY: U.S. International Trade information collection addresses agency may not conduct or sponsor and Commission. quarterly and annual reporting required you are not required to respond to a ACTION: Notice. of host institutions. collection of information unless it II. Data displays a currently valid OMB control SUMMARY: Notice is hereby given that the U.S. International Trade OMB Control Number: 1028–0096. number. Until the OMB approves a collection of information, you are not Commission has determined not to Form Number: NA. review the presiding administrative law Title: Department of the Interior obliged to respond. judge’s (‘‘ALJ’’) initial determination Regional Climate Science Centers. Comments: On September 1, 2015, we Type of Request: Revision of a published a Federal Register notice (80 (‘‘ID’’) (Order No. 6) terminating Better currently approved information FR 52786) announcing that we would Enterprise Co. Ltd. (‘‘BEC’’) based on a collection. submit this ICR to OMB for approval consent order stipulation and proposed Respondent Obligation: Required to and soliciting comments. The comment consent order. The Commission obtain or retain benefits. period closed on November 2, 2015. We terminates the investigation. Frequency of Collection: Information received no comments. FOR FURTHER INFORMATION CONTACT: will be collected one time every five Amanda Pitcher Fisherow, Esq., Office III. Request for Comments years (approximately) for each CSC, to of the General Counsel, U.S. enable re-competition of CSC hosting We again invite comments concerning International Trade Commission, 500 E agreements. In addition, host this ICR as to: (a) Whether the proposed Street SW., Washington, DC 20436, institutions are required to fill four collection of information is necessary telephone (202) 205–2737. Copies of quarterly financial statements and one for the agency to perform its duties, non-confidential documents filed in annual progress report. including whether the information is connection with this investigation are or Description of Respondents: useful; (b) the accuracy of the agency’s will be available for inspection during Institutions that are expected to propose estimate of the burden of the proposed official business hours (8:45 a.m. to 5:15 to serve as CSC host or partner collection of information; (c) how to p.m.) in the Office of the Secretary, U.S. institutions include State, local enhance the quality, usefulness, and International Trade Commission, 500 E government, and tribal entities, clarity of the information to be Street SW., Washington, DC 20436, including academic institutions. collected; and (d) how to minimize the telephone (202) 205–2000. General Existing host institutions are State burden on the respondents, including information concerning the Commission academic institutions. the use of automated collection may also be obtained by accessing its Estimated Total Number of Annual techniques or other forms of information Internet server at http://www.usitc.gov. Responses: USGS expects to request technology. The public record for this investigation
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may be viewed on the Commission’s By order of the Commission. phase of the investigation following electronic docket (EDIS) at http:// William R. Bishop, notification of a preliminary edis.usitc.gov. Hearing-impaired Supervisory Hearings and Information determination by Commerce that persons are advised that information on Officer. imports of hydrofluorocarbon blends this matter can be obtained by [FR Doc. 2016–19065 Filed 8–10–16; 8:45 am] and components from China were being contacting the Commission’s TDD BILLING CODE 7020–02–P sold at LTFV within the meaning of terminal on (202) 205–1810. section 733(b) of the Act (19 U.S.C. 1673b(b)). Notice of the scheduling of SUPPLEMENTARY INFORMATION: The INTERNATIONAL TRADE the final phase of the Commission’s Commission instituted this investigation COMMISSION investigation and of a public hearing to on May 9, 2016, based on a complaint [Investigation No. 731–TA–1279 (Final)] be held in connection therewith was and supplements filed on behalf of given by posting copies of the notice in WCM Industries, Inc., (‘‘complainant’’) Hydrofluorocarbon Blends and the Office of the Secretary, U.S. of Colorado Springs, Colorado. 81 FR Components From China; International Trade Commission, 28104 (May 9, 2016). The complaint as Determination Washington, DC, and by publishing the supplemented alleges violations of notice in the Federal Register of March 1 Section 337 of the Tariff Act of 1930, as On the basis of the record developed 1, 2016 (81 FR 10662). The hearing was amended, 19 U.S.C. 1337, in the sale for in the subject investigation, the United held in Washington, DC, on June 21, importation, importation, or sale within States International Trade Commission 2016, and all persons who requested the the United States after importation of (‘‘Commission’’) determines, pursuant opportunity were permitted to appear in certain overflow and drain assemblies to the Tariff Act of 1930 (‘‘the Act’’), person or by counsel. for bathtubs and components thereof by that an industry in the United States is The Commission made this materially injured by reason of imports reason of infringement of certain claims determination pursuant to section of hydrofluorocarbon (‘‘HFC’’) blends of U.S. Patent No. 8,302,220; U.S. Patent 735(b) of the Act (19 U.S.C. 1673d(b)). from China, provided for in subheading No. 8,321,970; U.S. Patent No. It completed and filed its determination 3824.78.00 of the Harmonized Tariff 8,584,272; and U.S. Patent No. in this investigation on August 5, 2016. Schedule of the United States, that have 9,200,436. The complaint further alleges The views of the Commission are been found by the Department of contained in USITC Publication 4629 that an industry in the United States Commerce (‘‘Commerce’’) to be sold in exists as required by subsection (a)(2) of (August 2016), entitled the United States at less than fair value Hydrofluorocarbon Blends and section 337. The Notice of Investigation (‘‘LTFV’’).2 The Commission further names Bridging Partners Corporation Components from China: Investigation determines that a U.S. industry is not No. 731–TA–1279 (Final). (‘‘BPC’’) of Taipei, Taiwan; BEC of materially injured or threatened with Taipei, Taiwan; and Everflow Industrial material injury by reason of imports of By order of the Commission. Supply Corporation (‘‘EIS’’) of HFC components from China. Issued: August 5, 2016 Changhua, Taiwan as respondents. BPC William R. Bishop, and EIS were previously terminated Background Supervisory Hearings and Information from the investigation based on consent The Commission, pursuant to section Officer. order stipulations and consent orders. 735(b) of the Act (19 U.S.C. 1673d(b)), [FR Doc. 2016–19064 Filed 8–10–16; 8:45 am] Order No. 3 (unreviewed). instituted this investigation effective BILLING CODE 7020–02–P On July 1, 2016, complainant filed a June 25, 2015, following receipt of a motion to terminate the investigation as petition filed with the Commission and INTERNATIONAL TRADE to BEC based on a consent order Commerce by the American HFC COMMISSION stipulation and proposed consent order. Coalition, and its members: Amtrol, Inc., West Warwick, Rhode Island; [Investigation No. 337–TA–967] On July 11, 2016, the ALJ granted the Arkema, Inc., King of Prussia, motion. Order No. 6. The ALJ found that Pennsylvania; The Chemours Company Certain Document Cameras and the consent order stipulation and the FC, LLC, Wilmington, Delaware; Software for Use Therewith; Issuance proposed consent order comply with the Honeywell International Inc., of a Limited Exclusion Order and Commission’s rules. The ALJ also found Morristown, New Jersey; Hudson Cease and Desist Order Against the that there is no evidence that Technologies, Pearl River, New York; Respondent Found in Default; termination of the investigation as to Mexichem Fluor Inc., St. Gabriel, Termination of the Investigation BEC would be contrary to the public Louisiana; Worthington Industries, Inc., interest. Id. at 4. No petitions for review Columbus, Ohio; and District Lodge 154 AGENCY: U.S. International Trade were filed. of the International Association of Commission. The Commission has determined not Machinists and Aerospace Workers.3 ACTION: Notice. The Commission scheduled the final to review the subject ID and has issued SUMMARY: Notice is hereby given that a consent order. Since BEC is the last the U.S. International Trade remaining respondent in the 1 The record is defined in sec. 207.2(f) of the Commission’s Rules of Practice and Procedure (19 Commission has issued a limited investigation, this action terminates the CFR 207.2(f)). exclusion order denying entry of certain investigation. 2 The Commission also finds that imports subject document cameras and software for use The authority for the Commission’s to Commerce’s affirmative critical circumstances therewith and a cease and desist order determination are not likely to undermine seriously against QOMO HiteVision, LLC determination is contained in section the remedial effect of the antidumping duty order 337 of the Tariff Act of 1930, as on HFC blends from China. (‘‘QOMO’’). The investigation is amended (19 U.S.C. 1337), and in part 3 The Commission did not grant Amtrol, Inc. and terminated. 210 of the Commission’s Rules of Worthington Industries, Inc. interested party status FOR FURTHER INFORMATION CONTACT: because neither qualifies as an interested party Practice and Procedure (19 CFR part under 19 U.S.C. 1677(9). Neither firm produces or Amanda Pitcher Fisherow, Esq., Office 210). blends the subject products. of the General Counsel, U.S.
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International Trade Commission, 500 E QOMO, and arguing that none of the INTERNATIONAL TRADE Street SW., Washington, DC 20436, public interest factors weighs against COMMISSION telephone (202) 205–2737. Copies of granting the LEO and CDO. non-confidential documents filed in Complainant requested that QOMO not Notice of Receipt of Complaint; connection with this investigation are or be afforded the opportunity to import Solicitation of Comments Relating to will be available for inspection during during the period of Presidential review, the Public Interest official business hours (8:45 a.m. to 5:15 or in the alternative, that the bond be set AGENCY: U.S. International Trade p.m.) in the Office of the Secretary, U.S. at 100 percent of entered value in Commission. International Trade Commission, 500 E accordance with the Commission ACTION: Notice. Street SW., Washington, DC 20436, practice for defaulting respondents. telephone (202) 205–2000. General SUMMARY: Notice is hereby given that information concerning the Commission The Commission finds that the the U.S. International Trade may also be obtained by accessing its statutory requirements for relief under Commission has received a complaint Internet server at http://www.usitc.gov. section 337(g)(1), (19 U.S.C. 1337(g)(1)) entitled Certain Industrial Control The public record for this investigation are met with respect to QOMO. In System Software, Systems Using Same, may be viewed on the Commission’s addition the Commission finds that the and Components Thereof, DN 3165; the electronic docket (EDIS) at http:// public interest factors enumerated in Commission is soliciting comments on edis.usitc.gov. Hearing-impaired section 337(g)(1) do not preclude any public interest issues raised by the persons are advised that information on issuance of the statutory relief. complaint or complainant’s filing under this matter can be obtained by The Commission has determined that section 210.8(b) of the Commission’s contacting the Commission’s TDD the appropriate remedy in this Rules of Practice and Procedure (19 CFR terminal on (202) 205–1810. investigation is (1) an LEO prohibiting 210.8(b)). SUPPLEMENTARY INFORMATION: The the unlicensed entry of certain FOR FURTHER INFORMATION CONTACT: Lisa Commission instituted this investigation document cameras and software for use R. Barton, Secretary to the Commission, on September 24, 2015, based on a therewith that are manufactured abroad U.S. International Trade Commission, complaint filed on behalf of Pathway by or on behalf of, or imported by or on 500 E Street SW., Washington, DC 20436, telephone (202) 205–2000. The Innovations & Technologies, Inc. of San behalf of, QOMO that infringe one or public version of the complaint can be Diego, California (‘‘Complainant’’). 80 more of claims 1–10, 12–18, and 20 of accessed on the Commission’s FR 57642 (September 24, 2015). The the ’751 patent; and (2) a CDO complaint alleges violations of Section Electronic Document Information prohibiting QOMO from importing, 337 of the Tariff Act of 1930, as System (EDIS) at EDIS,1 and will be selling, marketing, advertising, amended, 19 U.S.C. 1337, in the sale for available for inspection during official importation, importation, or sale within distributing, transferring (except for business hours (8:45 a.m. to 5:15 p.m.) the United States after importation of exportation), and soliciting United in the Office of the Secretary, U.S. certain document cameras and software States agents or distributors for certain International Trade Commission, 500 E for use therewith by reason of document cameras and software for use Street SW., Washington, DC 20436, infringement of certain claims of U.S. therewith that infringe one or more of telephone (202) 205–2000. Design Patent No. D647,906; U.S. Design claims 1–10, 12–18, and 20 of the ’751 General information concerning the Patent No. D674,389; U.S. Design Patent patent. Commission may also be obtained by No. D715,300; and U.S. Patent No. Finally, the Commission has accessing its Internet server at United 8,508,751 (‘‘the ’751 patent’’). The determined that the bond during the States International Trade Commission (USITC) at USITC.2 The public record Commission’s notice of investigation period of Presidential review pursuant for this investigation may be viewed on named the following respondents: to 19 U.S.C. 1337(j) shall be in the Recordex USA, Inc., of Long Island City, the Commission’s Electronic Document amount of 100 percent of the entered Information System (EDIS) at EDIS.3 New York (‘‘Recordex’’); QOMO of value of the imported articles that are Wixom, Michigan; and Adesso, Inc. of Hearing-impaired persons are advised subject to the LEO or CDO. The that information on this matter can be Walnut, California (‘‘Adesso’’). The Commission’s orders were delivered to Office of Unfair Import Investigations obtained by contacting the the President and to the United States was named as a party but has Commission’s TDD terminal on (202) Trade Representative on the day of their subsequently withdrawn from the 205–1810. issuance. investigation. Adesso was terminated SUPPLEMENTARY INFORMATION: The based on a consent order stipulation and The authority for the Commission’s Commission has received a complaint consent order. Order No. 5 (unreviewed) determination is contained in section and a submission pursuant to section (Nov. 23, 2015). QOMO was found to be 337 of the Tariff Act of 1930, as 210.8(b) of the Commission’s Rules of in default. Order No. 10 (unreviewed) amended (19 U.S.C. 1337), and in Part Practice and Procedure filed on behalf (Dec. 7, 2015). Recordex was terminated 210 of the Commission’s Rules of of Rockwell Automation, Inc. on August based on settlement. Order No. 19 Practice and Procedure (19 CFR part 5, 2016. The complaint alleges (unreviewed) (May 13, 2016). 210). violations of section 337 of the Tariff On December 7, 2015, the Act of 1930 (19 U.S.C. 1337) in the By order of the Commission. Commission determined not to review importation into the United States, the an initial determination finding QOMO Issued: August 5, 2016. sale for importation, and the sale within in default and later requested briefing Lisa R. Barton, the United States after importation of from the parties and the public on the Secretary to the Commission. 1 issues of remedy, the public interest, [FR Doc. 2016–19037 Filed 8–10–16; 8:45 am] Electronic Document Information System and bonding. Complainant filed a (EDIS): http://edis.usitc.gov. BILLING CODE 7020–02–P 2 United States International Trade Commission submission requesting a limited (USITC): http://edis.usitc.gov. exclusion order (‘‘LEO’’) and a cease 3 Electronic Document Information System and desist order (‘‘CDO’’) against (EDIS): http://edis.usitc.gov.
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certain industrial control system electronically on or before the deadlines By order of the Commission. software, systems using same, and stated above and submit 8 true paper Issued: August 8, 2016. components thereof. The complaint copies to the Office of the Secretary by William R. Bishop, names as respondents 3S-Smart noon the next day pursuant to section Supervisory Hearings and Information Software Solutions, GmbH of Germany; 210.4(f) of the Commission’s Rules of Officer. Advantech Corporation of Milpitas, CA; Practice and Procedure (19 CFR [FR Doc. 2016–19084 Filed 8–10–16; 8:45 am] and Advantech Co., Ltd. of Taiwan. The 210.4(f)). Submissions should refer to BILLING CODE 7020–02–P complainant requests that the the docket number (‘‘Docket No. 3165’’) Commission issue a limited exclusion in a prominent place on the cover page order, a cease and desist order, and and/or the first page. (See Handbook for impose a bond upon respondents’ Electronic Filing Procedures, Electronic DEPARTMENT OF JUSTICE alleged infringing articles during the 60- Filing Procedures 4). Persons with Bureau of Alcohol, Tobacco, Firearms day Presidential review period pursuant questions regarding filing should and Explosives to 19 U.S.C. 1337(j). contact the Secretary (202–205–2000). Proposed respondents, other Any person desiring to submit a [OMB Number 1140–0055] interested parties, and members of the document to the Commission in public are invited to file comments, not confidence must request confidential Agency Information Collection to exceed five (5) pages in length, treatment. All such requests should be Activities; Proposed eCollection inclusive of attachments, on any public directed to the Secretary to the eComments Requested; Identification interest issues raised by the complaint Commission and must include a full of Explosive Materials or section 210.8(b) filing. Comments statement of the reasons why the should address whether issuance of the Commission should grant such AGENCY: Bureau of Alcohol, Tobacco, relief specifically requested by the treatment. See 19 CFR 201.6. Documents Firearms and Explosives, Department of complainant in this investigation would for which confidential treatment by the Justice. affect the public health and welfare in Commission is properly sought will be ACTION: 30-day notice. the United States, competitive treated accordingly. All such requests SUMMARY: conditions in the United States should be directed to the Secretary to The Department of Justice economy, the production of like or the Commission and must include a full (DOJ), Bureau of Alcohol, Tobacco, directly competitive articles in the statement of the reasons why the Firearms and Explosives (ATF), will United States, or United States Commission should grant such submit the following information consumers. treatment. See 19 CFR 201.6. Documents collection request to the Office of In particular, the Commission is for which confidential treatment by the Management and Budget (OMB) for interested in comments that: Commission is properly sought will be review and approval in accordance with (i) Explain how the articles treated accordingly. All information, the Paperwork Reduction Act of 1995. potentially subject to the requested including confidential business The proposed information collection remedial orders are used in the United information and documents for which was previously published in the Federal States; confidential treatment is properly Register 81 FR 36584, on June 7, 2016, (ii) identify any public health, safety, sought, submitted to the Commission for allowing for a 60-day comment period. or welfare concerns in the United States purposes of this Investigation may be DATES: Comments are encouraged and relating to the requested remedial disclosed to and used: (i) By the will be accepted for an additional 30 orders; Commission, its employees and Offices, days until September 12, 2016. (iii) identify like or directly and contract personnel (a) for FOR FURTHER INFORMATION CONTACT: If competitive articles that complainant, developing or maintaining the records you have additional comments its licensees, or third parties make in the of this or a related proceeding, or (b) in especially on the estimated public United States which could replace the internal investigations, audits, reviews, burden or associated response time, subject articles if they were to be and evaluations relating to the suggestions, or need a copy of the excluded; (iv) indicate whether complainant, programs, personnel, and operations of proposed information collection complainant’s licensees, and/or third the Commission including under 5 instrument with instructions or party suppliers have the capacity to U.S.C. Appendix 3; or (ii) by U.S. additional information, please contact replace the volume of articles government employees and contract Anita Scheddel, Program Analyst, 5 potentially subject to the requested personnel, solely for cybersecurity Explosives Industry Programs Branch, exclusion order and/or a cease and purposes. All nonconfidential written 99 New York Ave. NE., Washington, DC desist order within a commercially submissions will be available for public 20226 at email: eipb- reasonable time; and inspection at the Office of the Secretary [email protected]. Written 6 (v) explain how the requested and on EDIS. comments and/or suggestions can also remedial orders would impact United This action is taken under the be directed to the Office of Management States consumers. authority of section 337 of the Tariff Act and Budget, Office of Information and Written submissions must be filed no of 1930, as amended (19 U.S.C. 1337), Regulatory Affairs, Attention later than by close of business, eight and of sections 201.10 and 210.8(c) of Department of Justice Desk Officer, _ calendar days after the date of the Commission’s Rules of Practice and Washington, DC 20503 or sent to OIRA publication of this notice in the Federal Procedure (19 CFR 201.10, 210.8(c)). [email protected]. Register. There will be further SUPPLEMENTARY INFORMATION: Written opportunities for comment on the 4 Handbook for Electronic Filing Procedures: comments and suggestions from the http://www.usitc.gov/secretary/fed_reg_notices/ public and affected agencies concerning public interest after the issuance of any _ _ _ final initial determination in this rules/handbook on electronic filing.pdf. the proposed collection of information 5 All contract personnel will sign appropriate investigation. nondisclosure agreements. are encouraged. Your comments should Persons filing written submissions 6 Electronic Document Information System address one or more of the following must file the original document (EDIS): http://edis.usitc.gov. four points:
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• Evaluate whether the proposed Dated: August 8, 2016. • Evaluate whether the proposed collection of information is necessary Jerri Murray, collection of information is necessary for the proper performance of the Department Clearance Officer for PRA, U.S. for the proper performance of the functions of the agency, including Department of Justice. functions of the agency, including whether the information will have [FR Doc. 2016–19096 Filed 8–10–16; 8:45 am] whether the information will have practical utility; BILLING CODE 4410–FY–P practical utility; • Evaluate the accuracy of the • Evaluate the accuracy of the agency’s estimate of the burden of the agency’s estimate of the burden of the proposed collection of information, DEPARTMENT OF JUSTICE proposed collection of information, including the validity of the including the validity of the methodology and assumptions used; Bureau of Alcohol, Tobacco, Firearms methodology and assumptions used; • Evaluate whether and if so how the and Explosives • Evaluate whether and if so how the quality, utility, and clarity of the quality, utility, and clarity of the information to be collected can be [OMB Number 1140–0004] information to be collected can be enhanced; and enhanced; and • Minimize the burden of the Agency Information Collection • Minimize the burden of the collection of information on those who Activities; Proposed eCollection collection of information on those who are to respond, including through the eComments Requested; Interstate are to respond, including through the use of appropriate automated, Firearms Shipment Report of Theft/ use of appropriate automated, electronic, mechanical, or other Loss (ATF F 3310.6) electronic, mechanical, or other technological collection techniques or technological collection techniques or other forms of information technology, AGENCY: Bureau of Alcohol, Tobacco, other forms of information technology, e.g., permitting electronic submission of Firearms and Explosives, Department of e.g., permitting electronic submission of responses. Justice. responses. ACTION: 30-Day notice. Overview of This Information Overview of This Information Collection SUMMARY: The Department of Justice Collection 1. Type of Information Collection: (DOJ), Bureau of Alcohol, Tobacco, 1. Type of Information Collection: Revision of a currently approved Firearms and Explosives (ATF), will Extension, without change, of a collection. submit the following information currently approved collection. 2. The Title of the Form/Collection: collection request to the Office of 2. The Title of the Form/Collection: Identification of Explosive Materials Management and Budget (OMB) for Interstate Firearms Shipment Report of 3. The agency form number, if any, review and approval in accordance with Theft/Loss. and the applicable component of the the Paperwork Reduction Act of 1995. 3. The agency form number, if any, Department sponsoring the collection: The proposed information collection and the applicable component of the Form number: None. was previously published in the Federal Department sponsoring the collection: Component: Bureau of Alcohol, Register 81 FR 36957, on June 8, 2016, Tobacco, Firearms and Explosives, U.S. Form number: ATF F 3310.6. allowing for a 60-day comment period. Component: Bureau of Alcohol, Department of Justice. 4. Affected public who will be asked DATES: Comments are encouraged and Tobacco, Firearms and Explosives, U.S. or required to respond, as well as a brief will be accepted for an additional 30 Department of Justice. abstract: days until September 12, 2016. 4. Affected public who will be asked Primary: Business or other for-profit. FOR FURTHER INFORMATION CONTACT: If or required to respond, as well as a brief Other: None. you have additional comments abstract: Abstract: Marking of explosives especially on the estimated public Primary: Business or other for-profit. enables law enforcement entities to burden or associated response time, Other: Federal Government. Abstract: 27 CFR part 478 of Federal more effectively trace explosives from suggestions, or need a copy of the Regulations requires Federal Firearms the manufacturer through the proposed information collection Licensees’ who discovers a firearm it distribution chain to the end purchaser. instrument with instructions or shipped was stolen or lost in transit, the This process is used as a tool in additional information, please contact transferor/sender FFL must report the criminal enforcement activities. Neil Troppman, National Tracing theft or loss to ATF and to the 5. An estimate of the total number of Center, Law Enforcement Support appropriate local authorities within 48 respondents and the amount of time Branch, 244 Needy Road, Martinsburg, hours of discovery on ATF Form estimated for an average respondent to WV 25405, at telephone number: 304– 3310.11. respond: An estimated 2,205 260–3643. Written comments and/or 5. An estimate of the total number of respondents will take 3 seconds to suggestions can also be directed to the respondents and the amount of time respond. Office of Management and Budget, 6. An estimate of the total public estimated for an average respondent to Office of Information and Regulatory burden (in hours) associated with the respond: An estimated 550 respondents Affairs, Attention Department of Justice collection: The estimated annual public will take 20 minutes to complete the Desk Officer, Washington, DC 20503 or burden associated with this collection is form. sent to OIRA_submissions@ 956 hours. 6. An estimate of the total public If additional information is required omb.eop.gov. burden (in hours) associated with the contact: Jerri Murray, Department SUPPLEMENTARY INFORMATION: Written collection: The estimated annual public Clearance Officer, United States comments and suggestions from the burden associated with this collection is Department of Justice, Justice public and affected agencies concerning 182 hours. Management Division, Policy and the proposed collection of information If additional information is required Planning Staff, Two Constitution are encouraged. Your comments should contact: Jerri Murray, Department Square, 145 N Street NE., Room address one or more of the following Clearance Officer, United States 3E–405B, Washington, DC 20530. four points: Department of Justice, Justice
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Management Division, Policy and address one or more of the following collection: The estimated annual public Planning Staff, Two Constitution four points: burden associated with this collection is Square, 145 N Street NE., Room 3E– • Evaluate whether the proposed 6,667 hours. 405B, Washington, DC 20530. collection of information is necessary If additional information is required for the proper performance of the Dated: August 8, 2016. contact: Jerri Murray, Department functions of the agency, including Clearance Officer, United States Jerri Murray, whether the information will have Department of Justice, Justice Department Clearance Officer for PRA, U.S. practical utility; Department of Justice. • Evaluate the accuracy of the Management Division, Policy and [FR Doc. 2016–19094 Filed 8–10–16; 8:45 am] agency’s estimate of the burden of the Planning Staff, Two Constitution BILLING CODE 4410–FY–P proposed collection of information, Square, 145 N Street NE., Room 3E– including the validity of the 405B, Washington, DC 20530. methodology and assumptions used; Dated: August 8, 2016. DEPARTMENT OF JUSTICE • Evaluate whether and if so how the Jerri Murray, quality, utility, and clarity of the Bureau of Alcohol, Tobacco, Firearms Department Clearance Officer for PRA, U.S. information to be collected can be Department of Justice. and Explosives enhanced; and [FR Doc. 2016–19095 Filed 8–10–16; 8:45 am] [OMB Number 1140–0046] • Minimize the burden of the collection of information on those who BILLING CODE 4410–FY–P Agency Information Collection are to respond, including through the Activities; Proposed eCollection use of appropriate automated, eComments Requested; Certification electronic, mechanical, or other DEPARTMENT OF JUSTICE on Agency Letterhead Authorizing technological collection techniques or Purchase of Firearm for Official Duties other forms of information technology, Antitrust Division of Law Enforcement Officer e.g., permitting electronic submission of Notice Pursuant to the National responses. AGENCY: Bureau of Alcohol, Tobacco, Cooperative Research and Production Firearms and Explosives, Department of Overview of This Information Act of 1993—Node.Js Foundation Justice. Collection ACTION: 60-Day notice. 1. Type of Information Collection Notice is hereby given that, on July (check justification or form 83–I): 14, 2016, pursuant to Section 6(a) of the SUMMARY: The Department of Justice Extension, without change, of a National Cooperative Research and (DOJ), Bureau of Alcohol, Tobacco, currently approved collection. Production Act of 1993, 15 U.S.C. 4301 Firearms and Explosives (ATF), will 2. The Title of the Form/Collection: et seq. (‘‘the Act’’), Node.js Foundation submit the following information Certification on Agency Letterhead has filed written notifications collection request to the Office of Authorizing Purchase of Firearm for simultaneously with the Attorney Management and Budget (OMB) for Official Duties of Law Enforcement General and the Federal Trade review and approval in accordance with Officer. Commission disclosing changes in its the Paperwork Reduction Act of 1995. 3. The agency form number, if any, membership. The notifications were DATES: Comments are encouraged and and the applicable component of the filed for the purpose of invoking the will be accepted for 60 days until Department sponsoring the collection: Act’s provisions limiting the recovery of October 11, 2016. Form number (if applicable): None. antitrust plaintiffs to actual damages FOR FURTHER INFORMATION CONTACT: If Component: Bureau of Alcohol, under specified circumstances. you have additional comments Tobacco, Firearms and Explosives, U.S. Specifically, Dynatrace LLC, Waltham, especially on the estimated public Department of Justice. MA, has been added as a party to this burden or associated response time, 4. Affected public who will be asked venture. or required to respond, as well as a brief suggestions, or need a copy of the Also, Famous Industries, Inc., San proposed information collection abstract: a. Primary: State, Local, or Tribal Francisco, CA; and Progress Software, instrument with instructions or Bedford, MA, have withdrawn as parties additional information, please contact Government. b. Other (if applicable): None. to this venture. Rinell Lawrence, Firearms Industry Abstract: The letter is used by a law No other changes have been made in Program Branch, Bureau of Alcohol, enforcement officer to purchase either the membership or planned Tobacco, Firearms and Explosives handguns to be used in his/her official activity of the group research project. (ATF), 99 New York Ave. NE., duties from a licensed firearm dealer Membership in this group research Washington, DC 20226 at email and anywhere in the country. The letter project remains open, and Node.js telephone: fipb-informationcollection@ shall state that the officer will use the Foundation intends to file additional atf.gov and 202–648–7190. Written firearm in official duties and that a written notifications disclosing all comments and/or suggestions can also records check reveals that the changes in membership. be directed to the Office of Management purchasing officer has no convictions On August 17, 2015, Node.js and Budget, Office of Information and for misdemeanor crimes of domestic Foundation filed its original notification Regulatory Affairs, Attention violence. Department of Justice Desk Officer, 5. An estimate of the total number of pursuant to Section 6(a) of the Act. The _ Washington, DC 20503 or sent to OIRA respondents and the amount of time Department of Justice published a notice [email protected]. estimated for an average respondent to in the Federal Register pursuant to SUPPLEMENTARY INFORMATION: Written respond: An estimated 50,000 Section 6(b) of the Act on September 28, comments and suggestions from the respondents will take 8 minutes to 2015 (80 FR 58297). public and affected agencies concerning complete and file the letter. The last notification was filed with the proposed collection of information 6. An estimate of the total public the Department on April 26, 2016. A are encouraged. Your comments should burden (in hours) associated with the notice was published in the Federal
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Register pursuant to Section 6(b) of the Register pursuant to Section 6(b) of the DEPARTMENT OF JUSTICE Act on June 9, 2016 (81 FR 37215). Act on May 18, 2016 (81 FR 31259). Antitrust Division Patricia A. Brink, Patricia A. Brink, Director of Civil Enforcement, Antitrust Director of Civil Enforcement, Antitrust Notice Pursuant to the National Division. Division. Cooperative Research and Production [FR Doc. 2016–19038 Filed 8–10–16; 8:45 am] [FR Doc. 2016–19042 Filed 8–10–16; 8:45 am] Act of 1993—Medical CBRN Defense BILLING CODE P BILLING CODE P Consortium (Formerly National Chemical Biological Defense Consortium) DEPARTMENT OF JUSTICE DEPARTMENT OF JUSTICE Notice is hereby given that, on June Antitrust Division Antitrust Division 23, 2016, pursuant to Section 6(a) of the Notice Pursuant to the National National Cooperative Research and Cooperative Research and Production Notice Pursuant to the National Production Act of 1993, 15 U.S.C. 4301 Act of 1993—Heterogeneous System Cooperative Research and Production et seq. (‘‘the Act’’), National Chemical Architecture Foundation Act of 1993—R Consortium, Inc. Biological Defense Consortium (‘‘NCBDC’’) has filed written Notice is hereby given that, on July 7, Notice is hereby given that, on July notifications simultaneously with the 2016, pursuant to Section 6(a) of the 19, 2016, pursuant to Section 6(a) of the Attorney General and the Federal Trade National Cooperative Research and National Cooperative Research and Commission disclosing changes in its Production Act of 1993, 15 U.S.C. 4301 Production Act of 1993, 15 U.S.C. 4301 membership. The notifications were et seq. (‘‘the Act’’), Heterogeneous et seq. (‘‘the Act’’), R Consortium, Inc. filed for the purpose of extending the System Architecture Foundation (‘‘HSA (‘‘R Consortium’’) has filed written Act’s provisions limiting the recovery of Foundation’’) has filed written notifications simultaneously with the antitrust plaintiffs to actual damages notifications simultaneously with the Attorney General and the Federal Trade under specified circumstances. National Attorney General and the Federal Trade Commission disclosing changes in its Chemical & Biological Defense Commission disclosing changes in its membership. The notifications were Consortium (‘‘NCBDC’’) has changed its membership. The notifications were filed for the purpose of extending the name to Medical CBRN Defense filed for the purpose of extending the Act’s provisions limiting the recovery of Consortium (‘‘MCDC’’). Specifically, Act’s provisions limiting the recovery of antitrust plaintiffs to actual damages AdjuvanceTechnologies, Inc., New antitrust plaintiffs to actual damages under specified circumstances. York, NY; AEQUOR, Inc., Oceanside, under specified circumstances. Specifically, IBM Corporation, Armonk, CA; AktiVax, Inc., Boulder, CO; Alchem Specifically, Friedrich-Alexander- NY, has been added as a party to this Laboratories Corp., Alachua, FL; University Erlangen-Nurnberg (FAU), venture. Artificial Cell Technologies, Inc., New Erlangen, GERMANY, has been added Haven, CT; Bach Pharma, Inc., North as a party to this venture. No other changes have been made in Andover, MA; Battelle Memorial Also, Sonics, Inc., Milpitas, CA; either the membership or planned Institute, Columbus, OH; Bryllan LLC, Tensilica, Inc., Santa Clara, CA; activity of the group research project. Brighton, MI; Creare LLC, Hanover, NH; STMicroelectronics International, Membership in this group research CUBRC, Inc., Buffalo, NY; Data Sciences Amsterdam, THE NETHERLANDS; project remains open, and R Consortium International, Inc., St. Paul, MN; First Analog Devices, Inc., Norwood, MA; intends to file additional written Line Technology, LLC, Chantilly, VA; Industrial Technology Research Institute notifications disclosing all changes in Ginkgo Bioworks, Boston, MA; Harris of Taiwan, Hsinchu, TAIWAN; VIA membership. Corporation, Herndon, VA; IIT Research Technologies, Inc., New Taipei City, On September 15, 2015, R Consortium Institute, Chicago, IL; Integrated TAIWAN; System Software Lab filed its original notification pursuant to Biotherapeutics, Inc., Gaithersburg, MD; National Tsing Hua University, Section 6(a) of the Act. The Department InvivoSciences, Inc., Madison, WI; Joint Hsinchu, TAIWAN; and Tsinghua of Justice published a notice in the Research and Development, Inc., University, Beijing, PEOPLE’S Federal Register pursuant to Section Stafford, VA; Mapp BioPharmaceuticals, REPUBLIC OF CHINA, have withdrawn 6(b) of the Act on October 2, 2015 (80 San Diego, CA; MaxCyte, Incorporated, as parties to this venture. No other FR 59815). Gaithersburg, MD; MRIGlobal, Kansas changes have been made in either the City, MO; Nanotherapeutics, Inc., membership or planned activity of the The last notification was filed with Alachua, FL; Philips Healthcare, group research project. Membership in the Department on May 23, 2016. A Andover, MA; Profectus BioSciences, this group research project remains notice was published in the Federal Inc., Baltimore, MD; ProModel open, and HSA Foundation intends to Register pursuant to Section 6(b) of the Corporation, Allentown, PA; file additional written notifications Act on June 21, 2016 (81 FR 40350). QuickSilver Analytics, Inc., Belcamp, disclosing all changes in membership. Patricia A. Brink, MD; SciTech Services, Inc., Havre de On August 31, 2012, HSA Foundation Grace, MD; SENTEL Corporation, filed its original notification pursuant to Director of Civil Enforcement, Antitrust Alexandria, VA; Shield Analysis Division. Section 6(a) of the Act. The Department Technology, LLC, Manassas, VA; of Justice published a notice in the [FR Doc. 2016–19043 Filed 8–10–16; 8:45 am] Southwest Research Institute, San Federal Register pursuant to Section BILLING CODE P Antonio, TX; SRI International, Menlo 6(b) of the Act on October 11, 2012 (77 Park, CA; Tech62, Fairfax, VA; Triton FR 61786). Systems, Inc., Chelmsford, MA; The last notification was filed with University of Pittsburgh, Pittsburgh, PA; the Department on April 12, 2016. A University of Tennessee, Knoxville, notice was published in the Federal Knoxville, TN; and Verndari Inc., Napa,
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CA, have been added as parties to this notification pursuant to Section 6(a) of DEPARTMENT OF JUSTICE venture. the Act. The Department of Justice No other changes have been made in published a notice in the Federal [OMB Number 1117–0004] either the membership or planned Register pursuant to Section 6(b) of the activity of the group research project. Act on November 14, 2014 (79 FR Agency Information Collection Membership in this group research 68301). Activities; Proposed eCollection, project remains open, and MCDC The last notification was filed with eComments Requested; Extension intends to file additional written the Department on May 2, 2016. A Without Change of a Previously notifications disclosing all changes in notice was published in the Federal Approved Collection Application for membership. Register pursuant to Section 6(b) of the Permit To Export Controlled On November 13, 2015, NCBDC filed Act on May 24, 2016 (81 FR 32776). Substances, Application for Permit To its original notification pursuant to Export Controlled Substances for Section 6(a) of the Act. The Department Patricia A. Brink, Subsequent Reexport—DEA Forms of Justice published a notice in the Director of Civil Enforcement, Antitrust 161, 161R Federal Register pursuant to Section Division. [FR Doc. 2016–19039 Filed 8–10–16; 8:45 am] AGENCY: Drug Enforcement 6(b) of the Act on January 6, 2016 (81 Administration, Department of Justice FR 513). BILLING CODE P ACTION: 30-day notice. Patricia A. Brink, Director of Civil Enforcement, Antitrust DEPARTMENT OF JUSTICE SUMMARY: The Department of Justice Division. (DOJ), Drug Enforcement [FR Doc. 2016–19035 Filed 8–10–16; 8:45 am] Antitrust Division Administration (DEA), will be BILLING CODE 4410–11–P submitting the following information Notice Pursuant to the National collection request to the Office of Cooperative Research and Production Management and Budget (OMB) for DEPARTMENT OF JUSTICE Act of 1993—ODPI, Inc. review and approval in accordance with Notice is hereby given that, on July the Paperwork Reduction Act of 1995. Antitrust Division 14, 2016, pursuant to Section 6(a) of the This proposed information collection was previously published in the Federal Notice Pursuant to the National National Cooperative Research and Production Act of 1993, 15 U.S.C. 4301 Register at 81 FR 38220, June 13, 2016, Cooperative Research and Production allowing for a 60 day comment period. Act of 1993—Open Platform for NFV et seq. (‘‘the Act’’), ODPi, Inc. (‘‘ODPi’’) DATES: Comments are encouraged and Project, Inc. has filed written notifications simultaneously with the Attorney will be accepted for an additional 30 Notice is hereby given that, on July General and the Federal Trade days until September 12, 2016. 20, 2016, pursuant to Section 6(a) of the Commission disclosing changes in its FOR FURTHER INFORMATION CONTACT: If National Cooperative Research and membership. The notifications were you have comments on the estimated Production Act of 1993, 15 U.S.C. 4301 filed for the purpose of invoking the public burden or associated response et seq. (‘‘the Act’’), Open Platform for Act’s provisions limiting the recovery of time, suggestions, or need a copy of the NFV Project, Inc. (‘‘Open Platform for antitrust plaintiffs to actual damages proposed information collection NFV Project’’) has filed written under specified circumstances. instrument with instructions or notifications simultaneously with the Specifically, Splunk Inc., San Francisco, additional information, please contact Attorney General and the Federal Trade CA; and 4C Decision, Herndon, VA, Michael J. Lewis, Office of Diversion Commission disclosing changes in its have been added as parties to this Control, Drug Enforcement membership. The notifications were venture. Administration; Mailing Address: 8701 filed for the purpose of extending the No other changes have been made in Morrissette Drive, Springfield, Virginia Act’s provisions limiting the recovery of either the membership or planned 22152; Telephone: (202) 598–6812 or antitrust plaintiffs to actual damages activity of the group research project. sent to OIRA_submissions@ under specified circumstances. Membership in this group research omb.eop.gov. Specifically, Beijing Internet Institute, project remains open, and ODPi intends SUPPLEMENTARY INFORMATION: Written Beijing, PEOPLE’S REPUBLIC OF to file additional written notifications comments and suggestions from the CHINA; Lenovo US, Morrisville, NC; disclosing all changes in membership. public and affected agencies concerning and Qualcomm Technologies Inc., San On November 23, 2015, ODPi filed its the proposed collection of information Diego, CA, have been added as parties original notification pursuant to Section are encouraged. Your comments should to this venture. 6(a) of the Act. The Department of address one or more of the following Also, Ixia, Calabasas, CA, has Justice published a notice in the Federal four points: withdrawn as a party to this venture. Register pursuant to Section 6(b) of the In addition, Freescale Semiconductor, Act on December 23, 2015 (80 FR —Evaluate whether the proposed Inc., has changed its name to NXP 79930). collection of information is necessary Semiconductors, Austin, TX. The last notification was filed with for the proper performance of the No other changes have been made in the Department on April 29, 2016. A functions of the agency, including either the membership or planned notice was published in the Federal whether the information will have activity of the group research project. Register pursuant to Section 6(h) of the practical utility; Membership in this group research Act on May 24, 2016 (81 FR 32777). —Evaluate the accuracy of the agency’s project remains open, and Open estimate of the burden of the Platform for NFV Project intends to file Patricia A. Brink, proposed collection of information, additional written notifications Director of Civil Enforcement, Antitrust including the validity of the disclosing all changes in membership. Division. methodology and assumptions used; On October 17, 2014, Open Platform [FR Doc. 2016–19036 Filed 8–10–16; 8:45 am] —Evaluate whether and if so how the for NFV Project filed its original BILLING CODE 4410–11–P quality, utility, and clarity of the
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information proposed to be collected Management Division, Policy and functions of the agency, including can be enhanced; and Planning Staff, Two Constitution whether the information will have —Minimize the burden of the collection Square, 145 N Street NE., Suite 3E.405B, practical utility; of information on those who are to Washington, DC 20530. —Evaluate the accuracy of the agency’s respond, including through the use of Dated: August 8, 2016. estimate of the burden of the appropriate automated, electronic, Jerri Murray, proposed collection of information, mechanical, or other forms of Department Clearance Officer for PRA, U.S. including the validity of the information technology, e.g., Department of Justice. methodology and assumptions used; permitting electronic submission of [FR Doc. 2016–19090 Filed 8–10–16; 8:45 am] responses. —Evaluate whether and if so how the BILLING CODE 4410–09–P quality, utility, and clarity of the Overview of This Information information proposed to be collected Collection can be enhanced; and DEPARTMENT OF JUSTICE 1. Type of Information Collection: —Minimize the burden of the collection Extension of a currently approved [OMB Number 1117–0023] of information on those who are to collection. respond, including through the use of 2. Title of the Form/Collection: Agency Information Collection appropriate automated, electronic, Application for Permit to Export Activities; Proposed eCollection, mechanical, or other forms of Controlled Substances; Application for eComments Requested; Extension information technology, e.g., Permit to Export Controlled Substances Without Change of a Previously permitting electronic submission of for Subsequent Reexport. Approved Collection Import/Export responses. 3. The agency form number, if any, Declaration for List I and List II and the applicable component of the Chemicals—DEA Forms 486, 486A Overview of this information collection: Department sponsoring the collection: AGENCY: Drug Enforcement DEA Forms: 161, 161R. The applicable Administration, Department of Justice. 1. Type of Information Collection: component within the Department of Extension of a currently approved ACTION: 30-Day notice. Justice is the Drug Enforcement collection. Administration, Office of Diversion SUMMARY: The Department of Justice 2. Title of the Form/Collection: Control. (DOJ), Drug Enforcement Import/Export Declaration for List I and 4. Affected public who will be asked Administration (DEA), will be List II Chemicals. or required to respond, as well as a brief submitting the following information abstract: 3. The agency form number, if any, collection request to the Office of and the applicable component of the Affected public (Primary): Business or Management and Budget (OMB) for other for-profit. Department sponsoring the collection: review and approval in accordance with DEA Forms: 486, 486A. The applicable Affected public (Other): None. the Paperwork Reduction Act of 1995. component within the Department of Abstract: Title 21, Code of Federal This proposed information collection Justice is the Drug Enforcement Regulations (21 CFR), Sections 1312.21 was previously published in the Federal Administration, Office of Diversion and 1312.22 require that any person Register at 81 FR 38218, June 13, 2016, Control. who desires to export or reexport allowing for a 60 day comment period. 4. Affected public who will be asked controlled substances listed in DATES: Comments are encouraged and or required to respond, as well as a brief schedules I or II, any narcotic substance will be accepted for an additional 30 abstract: listed in schedules III or IV, or any non- days until September 12, 2016. narcotic substance in schedule III which FOR FURTHER INFORMATION CONTACT: If Affected public (Primary): Business or the Administrator has specifically you have comments on the estimated other for-profit. designated by regulation in § 1312.30, or public burden or associated response Affected public (Other): None. any non-narcotic substance in schedule time, suggestions, or need a copy of the IV or V which is also listed in schedule Abstract: Section 1018 of the proposed information collection I or II of the Convention on Controlled Substances Import and instrument with instructions or Psychotropic Substances, must have an Export Act (CSIEA) (21 U.S.C. 971) and additional information, please contact export permit. Title 21 Code of Federal Regulations (21 Michael J. Lewis, Office of Diversion 5. An estimate of the total number of CFR) part 1313 require any persons who Control, Drug Enforcement respondents and the amount of time import, export, or conduct international Administration; Mailing Address: 8701 estimated for an average respondent to transactions involving list I and list II Morrissette Drive, Springfield, Virginia respond: The DEA estimates that 134 chemicals are required to establish a 22152; Telephone: (202) 598–6812 or respondents, with 6,116 responses system of recordkeeping and report sent to OIRA_submissions@ annually to this collection. The DEA certain information regarding those omb.eop.gov. estimates that it takes .5 hour to transactions to the DEA. The chemicals complete the form. SUPPLEMENTARY INFORMATION: Written subject to control are used in the 6. An estimate of the total public comments and suggestions from the clandestine manufacture of controlled burden (in hours) associated with the public and affected agencies concerning substances. proposed collection: The DEA estimates the proposed collection of information 5. An estimate of the total number of that this collection takes 3,301 annual are encouraged. Your comments should respondents and the amount of time burden hours. address one or more of the following estimated for an average respondent to If additional information is required four points: respond: The below table presents please contact: Jerri Murray, Department —Evaluate whether the proposed information regarding the number of Clearance Officer, United States collection of information is necessary respondents, responses and associated Department of Justice, Justice for the proper performance of the burden hours.
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Number of Number of Average time annual annual per response Total annual respondents* responses (minutes) hours
DEA–486—Import (paper) ...... 342 1,359 17 385 DEA–486—Import (online) ...... 855 17 242 DEA–486—Export (paper) ...... 2,533 20 844 DEA–486—Export (online) ...... 7,743 20 2,581 DEA–486—International (paper) ...... 422 17 120 DEA–486A—Import (paper) ...... 333 20 111 DEA–486A—Import (online) ...... 416 20 139
Total ...... 342 13,661 ...... 4,422
6. An estimate of the total public additional information, please contact Department sponsoring the collection: burden (in hours) associated with the Gerry Lynn Brovey, Supervisory 1–786. proposed collection: The DEA estimates Information Liaison Specialist, FBI, 4. Affected public who will be asked that this collection takes 4,442 annual CJIS, Resources Management Section, or required to respond, as well as a brief burden hours. Administrative Unit, Module C–2, 1000 abstract: Primary: Individuals. This If additional information is required Custer Hollow Road, Clarksburg, West collection is necessary for individuals to please contact: Jerri Murray, Virginia 26306 (facsimile: 304–625– submit payment to receive a copy of Department Clearance Officer, United 5093). Written comments and/or their personal identification record. States Department of Justice, Justice suggestions can also be directed to the 5. An estimate of the total number of Management Division, Policy and Office of Management and Budget, respondents and the amount of time Planning Staff, Two Constitution Office of Information and Regulatory estimated for an average respondent to Square, 145 N Street NE., Suite 3E.405B, Affairs, Attention Department of Justice respond: Annually, the FBI receives Washington, DC 20530. Desk Officer, Washington, DC 20530 or 80,000 credit card payment forms, _ Dated: August 8, 2016. sent to OIRA submissions@ therefore there are 80,000 respondents. Jerri Murray, omb.eop.gov. The form requires 2 minutes to complete. Department Clearance Officer for PRA, U.S. SUPPLEMENTARY INFORMATION: Written Department of Justice. comments and suggestions from the 6. An estimate of the total public burden (in hours) associated with the [FR Doc. 2016–19092 Filed 8–10–16; 8:45 am] public and affected agencies concerning collection: There are an estimated 2,667 BILLING CODE 4410–09–P the proposed collection of information are encouraged. Your comments should total annual burden hours associated address one or more of the following with this collection. DEPARTMENT OF JUSTICE four points: If additional information is required contact: Jerri Murray, Department [OMB Number 1110–NEW] —Evaluate whether the proposed collection of information is necessary Clearance Officer, United States Department of Justice, Justice Agency Information Collection for the proper performance of the functions of the agency, including Management Division, Policy and Activities; Proposed eCollection Planning Staff, Two Constitution eComments Requested; Approval of whether the information will have practical utility; Square, 145 N Street NE., 3E.405B, an Existing Collection in Use Without Washington, DC 20530. an OMB Control Number Credit Card —Evaluate the accuracy of the agency’s Payment Form (1–786) estimate of the burden of the Dated: August 08, 2016. proposed collection of information, Jerri Murray, AGENCY: Federal Bureau of including the validity of the Department Clearance Officer for PRA, U.S. Investigation, Department of Justice. methodology and assumptions used; Department of Justice. ACTION: 60-Day notice. —Enhance the quality, utility, and [FR Doc. 2016–19093 Filed 8–10–16; 8:45 am] clarity of the information to be BILLING CODE 4410–02–P SUMMARY: The Department of Justice collected; and/or (DOJ), Federal Bureau of Investigation —Minimize the burden of the collection (FBI), Criminal Justice Information of information on those who are to DEPARTMENT OF JUSTICE Services (CJIS) Division, will be respond, including through the use of submitting the following information appropriate automated, electronic, [OMB Number 1117–0009] collection request to the Office of mechanical, or other technological Agency Information Collection Management and Budget (OMB) for collection techniques or other forms Activities; Proposed eCollection, review and approval in accordance with of information technology, e.g., eComments Requested; Extension the Paperwork Reduction Act of 1995. permitting electronic submission of Without Change of a Previously DATES: Comments are encouraged and responses. Approved Collection Controlled will be accepted for 60 days until Overview of this information October 11, 2016. Substances Import/Export collection: Declaration—DEA Form 236 FOR FURTHER INFORMATION CONTACT: If 1. Type of Information Collection: you have additional comments Approval of an Existing Collection in AGENCY: Drug Enforcement especially on the estimated public Use without an OMB Control Number. Administration, Department of Justice. burden or associated response time, 2. The Title of the Form/Collection: ACTION: 30-Day notice. suggestions, or need a copy of the Credit Card Payment Form proposed information collection 3. The agency form number, if any, SUMMARY: The Department of Justice instrument with instructions or and the applicable component of the (DOJ), Drug Enforcement
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Administration (DEA), will be Department sponsoring the collection: information collection request to the submitting the following information Form Number: DEA Form 236. The Office of Management and Budget collection request to the Office of Department of Justice component is the (OMB) for review and approval in Management and Budget (OMB) for Drug Enforcement Administration, accordance with the Paperwork review and approval in accordance with Office of Diversion Control. Reduction Act of 1995. the Paperwork Reduction Act of 1995. 4. Affected public who will be asked DATES: Comments are encouraged and This proposed information collection or required to respond, as well as a brief will be accepted for 60 days until was previously published in the Federal abstract: October 11, 2016. Register at 81 FR 38219, June 13, 2016, Affected public (Primary): Business or FOR FURTHER INFORMATION CONTACT: allowing for a 60 day comment period. other for-profit. Additional comments especially on the DATES: Comments are encouraged and Affected public (Other): None. estimated public burden or associated will be accepted for an additional 30 Abstract: DEA Form 236 enables the response time, suggestions, or need for days until September 12, 2016. DEA to monitor and control the a copy of the proposed information FOR FURTHER INFORMATION CONTACT: If importation and exportation of collection instrument with instructions, you have comments on the estimated controlled substances. Analysis of these or additional information, should be public burden or associated response documents provides the DEA with directed to either the Special Master, time, suggestions, or need a copy of the important intelligence regarding the United States Victims of State proposed information collection international commerce in controlled Sponsored Terrorism Fund, or the Chief, instrument with instructions or substances and assists in the Program Management and Training additional information, please contact identification of suspected points of Unit, Asset Forfeiture and Money Michael J. Lewis, Office of Diversion diversion. Laundering Section, Criminal Division, Control, Drug Enforcement 5. An estimate of the total number of Department of Justice, 950 Pennsylvania Administration; Mailing Address: 8701 respondents and the amount of time Avenue NW., Washington, DC 20530– Morrissette Drive, Springfield, Virginia estimated for an average respondent to 0001, telephone (202) 353–2046. respond: The DEA estimates that there 22152; Telephone: (202) 598–6812 or SUPPLEMENTARY INFORMATION: Written are 157 total respondents for this sent to OIRA_submissions@ comments and suggestions from the information collection. In total, 157 omb.eop.gov. public and affected agencies concerning respondents submit 6,321 responses, the proposed collection of information SUPPLEMENTARY INFORMATION: Written with each response taking 17 minutes to are encouraged. Your comments should comments and suggestions from the complete. address one or more of the following public and affected agencies concerning 6. An estimate of the total public the proposed collection of information four points: burden (in hours) associated with the 1. Evaluate whether the proposed are encouraged. Your comments should proposed collection: The DEA estimates address one or more of the following collection of information is necessary that this collection takes 1,779 annual for the proper performance of the four points: burden hours. —Evaluate whether the proposed functions of the agency, including If additional information is required whether the information will have collection of information is necessary please contact: Jerri Murray, for the proper performance of the practical utility; Department Clearance Officer, United 2. Evaluate the accuracy of the functions of the agency, including States Department of Justice, Justice whether the information will have agency’s estimate of the burden of the Management Division, Policy and proposed collection of information, practical utility; Planning Staff, Two Constitution —Evaluate the accuracy of the agency’s including the validity of the Square, 145 N Street NE., Suite 3E.405B, methodology and assumptions used; estimate of the burden of the Washington, DC 20530. proposed collection of information, 3. Evaluate whether and if so how the including the validity of the Dated: August 8, 2016. quality, utility, and clarity of the methodology and assumptions used; Jerri Murray, information to be collected can be —Evaluate whether and if so how the Department Clearance Officer for PRA, U.S. enhanced; and quality, utility, and clarity of the Department of Justice. 4. Minimize the burden of the information proposed to be collected [FR Doc. 2016–19091 Filed 8–10–16; 8:45 am] collection of information on those who can be enhanced; and BILLING CODE 4410–09–P are to respond, including through the —Minimize the burden of the collection use of appropriate automated, of information on those who are to electronic, mechanical, or other respond, including through the use of DEPARTMENT OF JUSTICE technological collection techniques or other forms of information technology, appropriate automated, electronic, [OMB Number 1123–0013] mechanical, or other forms of e.g., permitting electronic submission of information technology, e.g., Agency Information Collection responses. permitting electronic submission of Activities; Proposed eCollection Overview of this information responses. eComments Requested; United States collection: 1. Type of Information Collection: Overview of This Information Victims of State Sponsored Terrorism Fund Application Form Revision of a currently approved Collection collection. 1. Type of Information Collection: AGENCY: Criminal Division, Department 2. The Title of the Form/Collection: Extension of a currently approved of Justice. Application Form for the U.S. Victims collection. ACTION: 60-Day notice. of State Sponsored Terrorism Fund. 2. Title of the Form/Collection: 3. The agency form number, if any, Controlled Substances Import/Export SUMMARY: The Department of Justice and the applicable component of the Declaration. (DOJ), Criminal Division, United States Department sponsoring the collection: 3. The agency form number, if any, Victims of State Sponsored Terrorism Form number: N/A. The U.S. Victims of and the applicable component of the Fund, will be submitting the following State Sponsored Terrorism Fund, U.S.
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Department of Justice, Criminal international terrorism by a state ADDRESSES: The meeting will be held at Division. sponsor of terrorism and the amount of the Peppermill, 2707 South Virginia 4. Affected public who will be asked compensatory damages awarded the Street, Reno, Nevada 89502. or required to respond, as well as a brief claimant in a final judgment. FOR FURTHER INFORMATION CONTACT: abstract: The U.S. Victims of State 5. An estimate of the total number of Athena R. Brown, DFO, Division of Sponsored Terrorism Fund (Fund) was applicants and the amount of time Indian and Native American Programs, established to provide compensation to estimated for an average applicant to Employment and Training certain individuals who were injured as respond: It is estimated that 700 Administration, U.S. Department of a result of acts of international terrorism respondents may complete the Labor, Room S–4209, 200 Constitution by a state sponsor of terrorism. Under 42 Application Form. It is estimated that Avenue NW., Washington, DC 20210. U.S.C. 10609(c), an eligible claimant is respondents will complete the paper Telephone number (202) 693–3737 (1) a U.S. person, as defined in 42 U.S.C. form in an average of 2 hours, and the (VOICE) (this is not a toll-free number). 10609(j)(8), with a final judgment issued electronic form in an average of 1.5 by a U.S. district court under state or hours. SUPPLEMENTARY INFORMATION: The federal law against a state sponsor of 6. An estimate of the total public meeting will be open to the public. terrorism and arising from an act of burden (in hours) associated with the Members of the public not present may international terrorism, for which the collection: The estimated public burden submit a written statement on or before foreign state was found not immune associated with this collection is 1,400 August 22, 2016, to be included in the under provisions of the Foreign hours. record of the meeting. Statements are to Sovereign Immunities Act, codified at If additional information is required be submitted to Athena R. Brown, 28 U.S.C. 1605A or 1605(a)(7) (as such contact: Jerri Murray, Department Designated Federal Officer (DFO), U.S. section was in effect on January 27, Clearance Officer, United States Department of Labor, 200 Constitution 2008); (2) a U.S. person, as defined in Department of Justice, Justice Avenue NW., Room S–4209, 42 U.S.C. 10609(j)(8), who was taken Management Division, Policy and Washington, DC 20210. Persons who and held hostage from the United States Planning Staff, Two Constitution need special accommodations should Embassy in Tehran, Iran, during the Square, 145 N Street NE., 3E–405B, contact Craig Lewis at (202) 693–3384, period beginning November 4, 1979, Washington, DC 20530. at least two business days before the meeting. The formal agenda will focus and ending January 20, 1981, or the Dated: August 8, 2016. on the following topics: (1) spouse and child of that U.S. person at Jerri Murray, that time, and who is also identified as Implementation of the Workforce Department Clearance Officer for PRA, U.S. Innovation and Opportunity Act a member of the proposed class in case Department of Justice. number 1:00–CV–03110 (EGS) of the (WIOA); (2) Overview of WIOA and the [FR Doc. 2016–19119 Filed 8–10–16; 8:45 am] United States District Court for the Section 166 Program, (3) Performance District of Columbia; or (3) the personal BILLING CODE 4410–14–P Indicators and Discussion of Additional representative of a deceased individual Measures; (4) Training and Technical in either of those two categories. Assistance; (5) Council and Workgroup The information collected from the DEPARTMENT OF LABOR Updates and Recommendations; (6) Fund’s Application Form will be used Strategic Objectives for Program Year Employment and Training to determine whether applicants are 2017–2018; and (7) Public Comment. Administration eligible for compensation from the Portia Wu, Fund, and if so, the amount of Workforce Innovation and Opportunity compensation to be awarded. The Assistant Secretary, Employment and Act; Native American Employment and Training Administration. Application Form consists of parts Training Council related to eligibility and compensation. [FR Doc. 2016–19112 Filed 8–10–16; 8:45 am] The eligibility parts seek the AGENCY: Employment and Training BILLING CODE 4501–FR–P information required by the Justice for Administration, U.S. Department of Victims of State Sponsored Terrorism Labor. DEPARTMENT OF LABOR Act to determine whether a claimant is ACTION: Notice of meeting. eligible for payment from the Fund, Office of the Secretary including information related to: SUMMARY: Pursuant to Section 10(a)(2) of the Federal Advisory Committee Act Participation in federal lawsuits against Agency Information Collection (FACA) (Pub. L. 92–463), as amended, a state sponsor of terrorism under the Activities; Submission for OMB and Section 166(i)(4) of the Workforce Foreign Sovereign Immunities Act; Review; Comment Request; Coal Mine Innovation and Opportunity Act being taken and held hostage at the U.S. Dust Sampling Devices Embassy in Tehran, Iran, from the (WIOA) [29 U.S.C. 3221(i)(4))], notice is period beginning November 4, 1979, hereby given of the next meeting of the ACTION: Notice. and ending January 20, 1981; or being Native American Employment and spouses and children of such hostages. Training Council (Council), as SUMMARY: The Department of Labor The compensation parts seek the constituted under WIOA. (DOL) is submitting the Mine Safety and information required by the Justice for DATES: The meeting will begin at 9:00 Health Administration (MSHA) Victims of State Sponsored Terrorism a.m., (Pacific Time) on Thursday, sponsored information collection Act to determine the amount of August 25, 2016, and continue until request (ICR) titled, ‘‘Coal Mine Dust compensation for which the claimant is 5:00 p.m. that day. The meeting will Sampling Devices,’’ to the Office of eligible. Specifically, the compensation reconvene at 9:00 a.m., on Friday, Management and Budget (OMB) for parts seek information regarding any August 26, 2016, and adjourn at 4:00 review and approval for continued use, payments from sources other than the p.m. that day. The period from 3:00 p.m. without change, in accordance with the Fund that the claimant received, is to 5:00 p.m. on August 25, 2016, will be Paperwork Reduction Act of 1995 entitled to receive, or is scheduled to reserved for participation and comment (PRA), 44 U.S.C. 3501 et seq. Public receive, as a result of the act of by members of the public. comments on the ICR are invited.
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DATES: The OMB will consider all This information collection is subject Agency: DOL–MSHA. written comments that agency receives to the PRA. A Federal agency generally Title of Collection: Coal Mine Dust on or before September 12, 2016. cannot conduct or sponsor a collection Sampling Devices. ADDRESSES: A copy of this ICR with of information, and the public is OMB Control Number: 1219–0147. applicable supporting documentation; generally not required to respond to an Affected Public: Private Sector— including a description of the likely information collection, unless it is businesses or other for-profits. respondents, proposed frequency of approved by the OMB under the PRA Total Estimated Number of response, and estimated total burden and displays a currently valid OMB Respondents: 1. may be obtained free of charge from the Control Number. In addition, Total Estimated Number of RegInfo.gov Web site at http:// notwithstanding any other provisions of Responses: 1. www.reginfo.gov/public/do/ law, no person shall generally be subject Total Estimated Annual Time Burden: PRAViewICR?ref_nbr=201605-1219–003 to penalty for failing to comply with a 41 hours. (this link will only become active on the collection of information that does not Total Estimated Annual Other Costs day following publication of this notice) display a valid Control Number. See 5 Burden: $296,455. CFR 1320.5(a) and 1320.6. The DOL or by contacting Michel Smyth by Dated: August 8, 2016. obtains OMB approval for this telephone at 202–693–4129, TTY 202– Michel Smyth, 693–8064, (these are not toll-free information collection under Control Number 1219–0147. Departmental Clearance Officer. numbers) or by email at DOL_PRA_ OMB authorization for an ICR cannot [FR Doc. 2016–19120 Filed 8–10–16; 8:45 am] [email protected]. be for more than three (3) years without BILLING CODE 4510–43–P Submit comments about this request renewal, and the current approval for by mail or courier to the Office of this collection is scheduled to expire on Information and Regulatory Affairs, September 30, 2016. The DOL seeks to NATIONAL SCIENCE FOUNDATION Attn: OMB Desk Officer for DOL– extend PRA authorization for this MSHA, Office of Management and information collection for three (3) more Proposal Review; Notice of Meetings Budget, Room 10235, 725 17th Street years, without any change to existing In accordance with the Federal NW., Washington, DC 20503; by Fax: requirements. The DOL notes that Advisory Committee Act (Pub. L. 92– 202–395–5806 (this is not a toll-free existing information collection _ number); or by email: OIRA requirements submitted to the OMB 463, as amended), the National Science [email protected]. Commenters receive a month-to-month extension Foundation (NSF) announces its intent are encouraged, but not required, to while they undergo review. For to hold proposal review meetings send a courtesy copy of any comments additional substantive information throughout the year. The purpose of by mail or courier to the U.S. about this ICR, see the related notice these meetings is to provide advice and Department of Labor—OASAM, Office published in the Federal Register on recommendations concerning proposals of the Chief Information Officer, Attn: March 18, 2016 (81 FR 14895). submitted to the NSF for financial Departmental Information Compliance Interested parties are encouraged to support. The agenda for each of these Management Program, Room N1301, send comments to the OMB, Office of meetings is to review and evaluate 200 Constitution Avenue NW., Information and Regulatory Affairs at proposals as part of the selection Washington, DC 20210; or by email: the address shown in the ADDRESSES process for awards. The review and [email protected]. section within thirty (30) days of evaluation may also include assessment of the progress of awarded proposals. FOR FURTHER INFORMATION CONTACT: publication of this notice in the Federal Contact Michel Smyth by telephone at Register. In order to help ensure The majority of these meetings will take 202–693–4129, TTY 202–693–8064, appropriate consideration, comments place at NSF, 4201 Wilson Blvd., (these are not toll-free numbers) or by should mention OMB Control Number Arlington, Virginia 22230. email at [email protected]. 1219–0147. The OMB is particularly These meetings will be closed to the public. The proposals being reviewed Authority: 44 U.S.C. 3507(a)(1)(D). interested in comments that: • Evaluate whether the proposed include information of a proprietary or SUPPLEMENTARY INFORMATION: This ICR collection of information is necessary confidential nature, including technical seeks to extend PRA authority for the for the proper performance of the information; financial data, such as Coal Mine Dust Sampling Devices functions of the agency, including salaries; and personal information information collection requirements whether the information will have concerning individuals associated with codified in regulations 30 CFR 74.7, practical utility; the proposals. These matters are exempt 74.8, 74.11, 74.13, and 74.16. • Evaluate the accuracy of the under 5 U.S.C. 552b(c), (4) and (6) of the Continuous Personal Dust Monitors agency’s estimate of the burden of the Government in the Sunshine Act. NSF (CPDMs) determine the concentration of proposed collection of information, will continue to review the agenda and respirable dust in coal mines. CPDMs including the validity of the merits of each meeting for overall must be designed and constructed for methodology and assumptions used; compliance of the Federal Advisory coal miners to wear and operate without • Enhance the quality, utility, and Committee Act. impeding their ability to perform their clarity of the information to be These closed proposal review work safely and effectively. CPDMs collected; and meetings will not be announced on an must also be durable to perform reliably • Minimize the burden of the individual basis in the Federal Register. in normal working conditions of coal collection of information on those who NSF intends to publish a notice similar mines. Paperwork requirements are to respond, including through the to this on a quarterly basis. For an imposed on applicants are related to the use of appropriate automated, advance listing of the closed proposal application process and CPDM testing electronic, mechanical, or other review meetings that include the names procedures. Federal Mine Safety and technological collection techniques or of the proposal review panel and the Health Act of 1977 sections 101(a) and other forms of information technology, time, date, place, and any information 103(h) authorize this information e.g., permitting electronic submission of on changes, corrections, or collection. See 30 U.S.C. 811(a), 813(h). responses. cancellations, please visit the NSF Web
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site: http://www.nsf.gov/events/. This document referenced (if it is available in and March 18, 2015, some of which information may also be requested by ADAMS) is provided the first time that went to nuclear power plants located in telephoning, 703/292–8687. it is mentioned in this document. Taiwan, and that it had exported a • Dated: August 5, 2016. NRC’s PDR: You may examine and reactor coolant pump (RCP) to France purchase copies of public documents at Crystal Robinson, on July 25, 2014. On October 29, 2015, the NRC’s PDR, Room O1–F21, One AREVA provided the required export Committee Management Officer. White Flint North, 11555 Rockville notifications to the U.S. Department of Dated: August 5, 2016. Pike, Rockville, Maryland 20852. Commerce (DOC), and on November 3, [FR Doc. 2016–19050 Filed 8–10–16; 8:45 am] FOR FURTHER INFORMATION CONTACT: 2015, this information was provided to BILLING CODE 7555–01–P Robert Fretz, Office of Enforcement, the NRC (NRC’s Agencywide U.S. Nuclear Regulatory Commission, Documents Access and Management Washington, DC 20555–001; telephone: System (ADAMS) Accession No. NUCLEAR REGULATORY 301–415–1980, email: Robert.Fretz@ ML16056A349). COMMISSION nrc.gov. Section 110.54(a)(1) of 10 CFR states, in part, that reports of exports of nuclear [EA–16–016; NRC–2016–0163] SUPPLEMENTARY INFORMATION: The text of the Order is attached. facilities and equipment shipped during Confirmatory Order; In the Matter of the previous quarter must be made by AREVA, Inc. Dated at Rockville, Maryland, this 4th day licensees making exports under the of August 2016. general license or specific license in 10 AGENCY: Nuclear Regulatory For the Nuclear Regulatory Commission. CFR part 110 by January 15, April 15, Commission. Patricia K. Holahan, July 15, and October 15 of each year on ACTION: Confirmatory order; issuance. Director, Office of Enforcement. DOC/NRC Forms AP–M or AP–13, and United States of America associated forms. In accordance with 10 SUMMARY: The U.S. Nuclear Regulatory CFR 110.54(a)(2), these required reports Commission (NRC) issued a Nuclear Regulatory Commission must be submitted to the DOC, Bureau confirmatory order (Order) to AREVA, of Industry and Security. The reports Inc. (AREVA), confirming the agreement In the Matter of AREVA, Inc. EA–16– 016 must contain information on all nuclear reached in an Alternative Dispute facilities, equipment, and non-nuclear Resolution mediation session held on Confirmatory Order (Effective Upon materials listed in Annex II of the June 13, 2016. This Order will resolve Issuance) Additional Protocol. the issues that were identified during an I Between June 2009 and March 2015, NRC records review related to AREVA’s AREVA, Inc. (AREVA) is a AREVA failed to report exports under export of nuclear components and the general license and specific license equipment. multinational corporation specializing in nuclear power and renewable energy in 10 CFR part 110 of nuclear DATES: The confirmatory order was services, including the export of reactor equipment shipped during the previous issued on August 4, 2016. components under Part 110 of title 10 of quarter. Specifically, AREVA exported ADDRESSES: Please refer to Docket ID the Code of Federal Regulations (10 nuclear reactor equipment and NRC–2016–0163 when contacting the CFR). AREVA’s headquarters is located components from the United States NRC about the availability of in Charlotte, North Carolina. including components described in information regarding this document. This Confirmatory Order (CO) is the paragraphs (4), (5), (6), and (7) of You may obtain publicly-available result of an agreement reached during Appendix A to 10 CFR part 110 and information related to this document an Alternative Dispute Resolution failed to submit quarterly reports to the using any of the following methods: (ADR) mediation session conducted on NRC and DOC as noted by the following • Federal Rulemaking Web site: Go to June 13, 2016. examples: http://www.regulations.gov and search 1. On June 1, 2009, AREVA exported for Docket ID NRC–2016–0163. Address II zircalloy boiling water reactor fuel questions about NRC dockets to Carol On September 9, 2015, AREVA met channels to a nuclear power plant Gallagher; telephone: 301–415–3463; with representatives from the NRC’s located in Taiwan. email: [email protected]. For Office of Nuclear Material Safety and 2. On April 26, 2012, AREVA exported questions about this Order, contact the Safeguards (NMSS) to discuss licensee zirconium tubes designed and individual listed in the FOR FURTHER responsibilities under the Protocol prepared for use as fuel cladding to INFORMATION CONTACT section of this Additional to the Agreement between CEZUS in France. document. the United States of America and the 3. On December 3, 2013, AREVA • NRC’s Agencywide Documents International Atomic Energy Agency for exported inert zircalloy fuel rods Access and Management System the Application of Safeguards in the designed and prepared for use as (ADAMS): You may obtain publicly- United States of America (hereinafter fuel cladding to a nuclear power available documents online in the referred to as the Additional Protocol). plant located in Taiwan. ADAMS Public Documents collection at During the meeting, AREVA officials 4. On February 20, 2014, AREVA http://www.nrc.gov/reading-rm/ informed NMSS representatives that exported zirconium fuel assembly adams.html. To begin the search, select AREVA may have exported reactor guide tubes to CEZUS in France. ‘‘ADAMS Public Documents’’ and then components to other countries without 5. On March 18, 2015, AREVA exported select ‘‘Begin Web-based ADAMS making the notifications required by the zirconium tubes designed and Search.’’ For problems with ADAMS, Additional Protocol and the NRC’s prepared for use as fuel cladding to please contact the NRC’s Public regulations in 10 CFR 110.54(a)(1). GDE–SA (a fuel recycler) in France. Document Room (PDR) reference staff at Subsequently, AREVA conducted a 6. On July 25, 2014, AREVA exported an 1–800–397–4209, 301–415–4737, or by review of its export activities, and later RCP (without motor), especially email to [email protected]. The notified the NRC that it had exported designed and prepared for ADAMS accession number for each zirconium tubes between June 1, 2009, circulation of the primary coolant
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in a nuclear reactor, to Jeumont in violations (ADAMS Accession No. components for calendar years 2009 France. ML16110A402). The apparent violation through 2015. involved (1) the failure to make Reactor coolant pumps, reactor Future AREVA Actions pressure tubes, fuel channels, zirconium quarterly reports of the export of nuclear tubes designed and prepared for use as reactor components subject to the Communications fuel cladding, and zirconium fuel Additional Protocol and as required by 1. AREVA will submit an article, assembly guide tubes are nuclear reactor the NRC’s regulations; and (2) the export reviewed by AREVA’s General equipment and components described of an RCP (without motor) to France Counsel and Export Control Officer, in paragraphs (4), (5), (6), and (7) of without a specific license authorizing to be included in the quarterly Appendix A to 10 CFR part 110, and are the export. Nuclear Materials Management and listed in Annex II of the Additional The first apparent violation impacted Safeguards Systems (NMMSS) Protocol. France and Taiwan are also the U.S. Government’s ability to comply newsletter. listed in 10 CFR 110.26(b) as approved with international obligations for a. Within 60 calendar days from the destinations for the export of nuclear reporting certain exports under the date of the CO, AREVA will submit reactor components under a general Additional Protocol. The second a draft of the article to the Director, license. As such, AREVA was required apparent violation raised significant Office of Enforcement, for review by 10 CFR 110.54(a)(1) to submit regulatory concerns because an RCP is and approval. quarterly export reports to the DOC, considered a ‘‘major reactor b. The article will summarize the Bureau of Industry and Security. component’’ and requires the highest existence of NRC import/export NRC staff reviewed the export level of review under the Atomic Energy requirements, emphasizing the notifications submitted on November 3, Act of 1954, as amended, and 10 CFR importance of specific and general 2015, and during this review, identified part 110. Specifically, the export of an license requirements under 10 CFR a second apparent violation regarding RCP would require a NRC Commission- part 110, including the reporting the export of an RCP (without motor) to level review and solicitation of U.S. requirements. France without a specific license Executive Branch views including c. The article will also include authorizing the export (as listed in government-to-government assurances lessons-learned regarding EA–16– example 6 above). Section 110.5 of 10 from EURATOM in accordance with the 016. CFR states, in part, that no person may Agreement for Cooperation in the d. Within 15 calendar days of the export any nuclear equipment listed in Peaceful Uses of Nuclear Energy NRC’s receipt of the draft article 10 CFR 110.8 unless authorized by a between the European Atomic Energy submitted by AREVA, the NRC will general or specific license issued under Community and the United States of provide its comments, if any, to 10 CFR part 110. Section 110.20(a) of 10 America (commonly referred to as the AREVA and approve the article. CFR states that a person may use an Section 123 Agreement). AREVA’s e. AREVA will incorporate any NRC NRC general license as authority to failure to apply for and receive an comments into the article. export or import nuclear equipment or export license significantly impacted f. The NRC will publish the article in material, if the nuclear equipment or the NRC’s regulatory process. the next quarterly newsletter. material to be exported or imported is In the April 21, 2016, letter the NRC 2. AREVA will conduct a presentation, covered by the NRC general licenses offered AREVA the opportunity to: (1) as outlined below, at the NMMSS described in § 110.21 through 110.27. If request a Predecisional Enforcement Annual Users Conference to be held an export or import is not covered by an Conference (PEC) or (2) request an ADR. in May 2017. NRC general license, a person must file In response to the NRC’s letter, AREVA a. At least 30 calendar days prior to an application for a specific license in requested to use the NRC’s ADR the conference, AREVA will submit accordance with § 110.31 through 32. process. On June 13, 2016, AREVA and its draft presentation to the NRC. On July 25, 2014, AREVA exported the NRC met in an ADR session b. The presentation will summarize nuclear equipment listed in 10 CFR mediated by a professional mediator, the existence of NRC import/export 110.8 to France that was not authorized arranged through Cornell University’s requirements, emphasizing the by a general license and without filing Institute on Conflict Resolution. The importance of specific and general an application for a specific license in ADR process is one in which a neutral license requirements under 10 CFR accordance with § 110.31 through 32. In mediator, with no decision-making part 110, including the reporting its annual report of exports required by authority, assists the parties in reaching requirements. 10 CFR 110.54(c), dated January 16, an agreement on resolving any c. The presentation will also include 2015 (non-public), AREVA stated that it differences regarding the dispute. This lessons-learned regarding EA–16– had exported an ‘‘RCP’’ under the 10 CO is issued pursuant to the agreement 016. CFR 110.26 general license. AREVA reached during the ADR process. d. Within 15 calendar days of the inappropriately keyed the component to NRC’s receipt of the draft III paragraph (9) of Appendix A to 10 CFR presentation submitted by AREVA, part 110, ‘‘Illustrative List of Nuclear During the ADR session, AREVA and the NRC will provide its comments, Reactor Equipment under NRC Export the NRC reached a preliminary if any, to AREVA and approve the Licensing Authority.’’ However, reactor settlement agreement. The elements of presentation. primary coolant pumps are described in the agreement included corrective e. AREVA will incorporate any NRC paragraph (4) of Appendix A to 10 CFR actions that AREVA stated were comments into the presentation. part 110 and are, therefore, not completed as described below and 3. By the end of calendar year 2016, permitted to be exported under the NRC future actions as follows: AREVA will offer to discuss and general license in 10 CFR 110.26. exchange views on the lessons- Completed Corrective Actions On April 21, 2016, the NRC issued a learned regarding EA–16–016 with letter to AREVA that detailed the results 1. AREVA provided quarterly reports to Westinghouse Electric Company, of the NRC’s findings, as described the NRC via the DOC for export General Electric-Hitachi, and above, and outlined two apparent reports of reactor equipment and Urenco USA, during a conference
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call or a meeting. Significant 9. Following the initial audit, the audits Office of Enforcement, U.S. Nuclear observations from the discussions will continue on an annual basis. Regulatory Commission, One White should be incorporated into the Within 30 calendar days of the Flint North, 11555 Rockville Pike, presentation outlined in paragraph receipt of the annual audit report, Rockville, MD 20852–2783, with a 2 above. AREVA will share the consultant’s copy to the Director, Office of International Programs, NRC. Work Processes written assessment, which may include recommendations or On July 29, 2016, AREVA consented 4. Within 12 months, AREVA will suggestions for improvement, with to issuing this Order with the develop and/or update written the NRC. After the third annual commitments, as described in Section V procedures related to NRC audit, upon request by AREVA and below (ADAMS Accession No. requirements contained in 10 CFR a showing of good cause, the ML16176A139). AREVA further agreed parts 75 and 110. These written Director, Office of Enforcement, that this Order is to be effective upon procedures will include a corporate shall rescind the audit issuance and that it has waived its right focus and apply to all AREVA requirements. to a hearing. facilities. AREVA Annual Report IV Training 10. Concurrently with the submission of Because AREVA has agreed to take 5. Within 60 calendar days, AREVA will the initial audit report discussed in additional actions to address NRC conduct training with management paragraph 8 and annually concerns, as set forth in Section III and staff responsible for the import/ thereafter, AREVA will submit to above, the NRC has concluded that its export activities within AREVA to the Director, Office of Enforcement, concerns can be resolved through outline the requirements contained an annual letter confirming its issuance of this CO. in 10 CFR parts 75 and 110, and to compliance with the CO and I find that AREVA’s commitments as emphasize and reinforce NRC providing relevant details set forth in Section V are acceptable and compliance expectations. AREVA demonstrating such compliance. necessary and conclude that with these will maintain documentation of After the fourth submission of the commitments, the public health and management and staff that attended compliance letter, upon request by safety are reasonably assured. In view of such training. AREVA and a showing of good the foregoing, I have determined that 6. AREVA will provide annual refresher cause, the Director, Office of public health and safety require that training for management and staff Enforcement, shall rescind the AREVA’s commitments be confirmed by responsible for the import/export compliance letter requirement. this Order. Based on the above and activities including training on any AREVA’s consent, this CO is effective Safety Culture developed or updated written upon issuance. procedures referred to in paragraph 11. Within 60 calendar days of issuance 4. AREVA will maintain of the CO, AREVA will provide to V documentation of management and the Director, Office of Enforcement, Accordingly, pursuant to Sections 81, staff that attended such training. AREVA’s written policies, 161b, 161i, 161o, 182 and 186 of the 7. AREVA will provide initial training procedures, and other information Atomic Energy Act of 1954, as amended, for new management and staff relating to AREVA’s safety culture and the Commission’s regulations in 10 responsible for import/export including, but not limited to, safety CFR 2.202 and 10 CFR part 110, IT IS activities, including training on any conscious work environment, HEREBY ORDERED, EFFECTIVE UPON developed or updated written employee concerns, and its ISSUANCE, THAT AREVA COMPLETE procedures referred to in paragraph corrective action program for NRC THE FOLLOWING ACTIONS: 4. AREVA will maintain review and comment. documentation of management and Communications staff that attended such training. General 1. AREVA will submit an article, Audits 12. The NRC agrees not to pursue reviewed by AREVA’s General further enforcement action in Counsel and Export Control Officer, 8. No later than 60 calendar days connection with its April 21, 2016, to be included in the quarterly following the development of the letter to AREVA. NMMSS newsletter. procedures described in paragraph 13. In consideration of the commitments a. Within 60 calendar days from the 4, AREVA will engage an above, the NRC agrees to refrain date of the CO, AREVA will submit independent third-party consultant from imposing a civil penalty or a draft of the article to the Director, to conduct a review and provide a issuing a Notice of Violation. Office of Enforcement, for review written assessment of AREVA’s 14. The CO will constitute an escalated and approval. written import/export compliance enforcement action. b. The article will summarize the program and training activities. 15. Additionally, the CO resulting from existence of NRC import/export Within 30 calendar days of the this ADR will correct and document requirements, emphasizing the receipt of the final audit report, incorrect information in the NRC’s importance of specific and general AREVA will share the consultant’s April 21, 2016, letter to AREVA. license requirements under 10 CFR written assessment, which may 16. AREVA’s successor in interest will part 110, including the reporting include recommendations or be bound by the terms and requirements. suggestions for improvement, with conditions set forth in the CO. c. The article will also include the NRC. The consultant will 17. Unless otherwise specified, all dates lessons-learned regarding EA–16– possess NRC regulatory experience. are from the date of issuance of the 016. AREVA’s submission of the first CO. d. Within 15 calendar days of the audit report to the NRC shall in no 18. Unless otherwise specified, all NRC’s receipt of the draft article event be later than 2 years from the documents required to be submitted submitted by AREVA, the NRC will issuance of the CO. to the NRC will be sent to: Director, provide its comments, if any, to
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AREVA and approve the article. developed or updated written Safety Culture e. AREVA will incorporate any NRC procedures referred to in paragraph 11. Within 60 calendar days of issuance comments into the article. 4. AREVA will maintain of the CO, AREVA will provide to f. The NRC will publish the article in documentation of management and the Director, Office of Enforcement, the next quarterly newsletter. staff that attended such training. AREVA’s written policies, 2. AREVA will conduct a presentation, 7. AREVA will provide initial training procedures, and other information as outlined below, at the NMMSS for new management and staff relating to AREVA’s safety culture Annual Users Conference to be held responsible for the import/export including, but not limited to, safety in May 2017. activities including training on any a. At least 30 calendar days prior to conscious work environment, developed or updated written the conference, AREVA will submit employee concerns, and its procedures referred to in paragraph its draft presentation to the NRC. corrective action program for NRC b. The presentation will summarize 4. AREVA will maintain review and comment. the existence of NRC import/export documentation of management and In the event of the transfer of requirements, emphasizing the staff that attended such training. ownership of AREVA to another entity, the terms and conditions set forth importance of specific and general Audits license requirements under 10 CFR hereunder shall continue to apply to the part 110, including the reporting 8. No later than 60 calendar days new entity and accordingly survive any requirements. following the development of the transfer of ownership. c. The presentation will also include procedures described in paragraph Unless otherwise specified, all dates lessons-learned regarding EA–16– 4, AREVA will engage an are from the date of issuance of the CO. 016. independent third-party consultant The Director, Office of Enforcement, d. Within 15 calendar days of the to conduct a review and provide a may, in writing, relax or rescind any of NRC’s receipt of the draft written assessment of AREVA’s the above conditions upon presentation submitted by AREVA, written import/export compliance demonstration by AREVA of good cause. the NRC will provide its comments, program and training activities. VI if any, to AREVA and approve the Within 30 calendar days of the presentation. receipt of the final audit report, In accordance with 10 CFR 2.202 and e. AREVA will incorporate any NRC AREVA will share the consultant’s 10 CFR 2.309, any person adversely comments into the presentation. written assessment, which may affected by this CO, other than AREVA, 3. By the end of calendar year 2016, include recommendations or may request a hearing within 30 AREVA will offer to discuss and suggestions for improvement, with calendar days of the date of issuance of exchange views on the lessons- the NRC. The consultant will this CO. Where good cause is shown, learned regarding EA–16–016 with possess NRC regulatory experience. consideration will be given to extending Westinghouse Electric Company, AREVA’s submission of the first the time to request a hearing. A request General Electric-Hitachi, and audit report to the NRC shall in no for extension of time must be made in Urenco USA, during a conference event be later than 2 years from the writing to the Director, Office of call or a meeting. Significant issuance of the CO. Enforcement, U.S. Nuclear Regulatory Commission, Washington, DC 20555, observations from the discussions 9. Following the initial audit, the audits should be incorporated into the and include a statement of good cause will continue on an annual basis. for the extension. presentation outlined in paragraph Within 30 calendar days of the 2 above. All documents filed in NRC receipt of the annual audit report, adjudicatory proceedings, including a Work Processes AREVA will share the consultant’s request for hearing, a petition for leave written assessment, which may 4. Within 12 months, AREVA will to intervene, any motion or other include recommendations or develop and/or update written document filed in the proceeding prior suggestions for improvement, with procedures related to NRC to the submission of a request for the NRC. After the third annual requirements contained in 10 CFR hearing or petition to intervene, and audit, upon request by AREVA and parts 75 and 110. These written documents filed by interested a showing of good cause, the procedures will include a corporate governmental entities participating Director, Office of Enforcement focus and apply to all AREVA under 10 CFR 2.315(c), must be filed in shall rescind the audit facilities. accordance with the NRC E-Filing rule requirements. (72 FR 49139, August 28, 2007, as Training AREVA Annual Report amended at 77 FR 46562, August 3, 5. Within 60 calendar days, AREVA will 2012). The E-Filing process requires conduct training with management 10. Concurrently with the submission of participants to submit and serve all and staff responsible for the import/ the initial audit report discussed in adjudicatory documents over the export activities within AREVA to paragraph 8 and annually internet, or in some cases to mail copies outline the requirements contained thereafter, AREVA will submit to on electronic storage media. Participants in 10 CFR parts 75 and 110, and to the Director, Office of Enforcement, may not submit paper copies of their emphasize and reinforce NRC an annual letter confirming its filings unless they seek an exemption in compliance expectations. AREVA compliance with the CO and accordance with the procedures will maintain documentation of providing relevant details described below. management and staff that attended demonstrating such compliance. To comply with the procedural such training. After the fourth submission of the requirements of E-Filing, at least ten 6. AREVA will provide annual refresher compliance letter, upon request by (10) days prior to the filing deadline, the training for management and staff AREVA and a showing of good participant should contact the Office of responsible for the import/export cause, the Director, OE shall rescind the Secretary by email at activities including training on any the compliance letter requirement. [email protected], or by telephone
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at (301) 415–1677, to request (1) a system. To be timely, an electronic expedited delivery service upon digital identification (ID) certificate, filing must be submitted to the E-Filing depositing the document with the which allows the participant (or its system no later than 11:59 p.m. Eastern provider of the service. A presiding counsel or representative) to digitally Time on the due date. Upon receipt of officer, having granted an exemption sign documents and access the E- a transmission, the E-Filing system request from using E-Filing, may require Submittal server for any proceeding in time-stamps the document and sends a participant or party to use E-Filing if which it is participating; and (2) advise the submitter an email notice the presiding officer subsequently the Secretary that the participant will be confirming receipt of the document. The determines that the reason for granting submitting a request or petition for E-Filing system also distributes an email the exemption from use of E-Filing no hearing (even in instances in which the notice that provides access to the longer exists. participant, or its counsel or document to the NRC Office of the Documents submitted in adjudicatory representative, already holds an NRC- General Counsel and any others who proceedings will appear in NRC’s issued digital ID certificate). Based upon have advised the Office of the Secretary electronic hearing docket which is this information, the Secretary will that they wish to participate in the available to the public at http:// establish an electronic docket for the proceeding, so that the filer need not ehd1.nrc.gov/ehd/, unless excluded hearing in this proceeding if the serve the documents on those pursuant to an order of the Commission, Secretary has not already established an participants separately. Therefore, or the presiding officer. Participants are electronic docket. applicants and other participants (or requested not to include personal Information about applying for a their counsel or representative) must privacy information, such as social digital ID certificate is available on apply for and receive a digital ID security numbers, home addresses, or NRC’s public Web site at http:// certificate before a hearing request/ home phone numbers in their filings, www.nrc.gov/site-help/e-submittals/ petition to intervene is filed so that they unless an NRC regulation or other law getting-started.html. System can obtain access to the document via requires submission of such requirements for accessing the E- the E-Filing system. information. With respect to Submittal server are detailed in NRC’s A person filing electronically using copyrighted works, except for limited ‘‘Guidance for Electronic Submission,’’ the agency’s adjudicatory E-Filing excerpts that serve the purpose of the which is available on the agency’s system may seek assistance by adjudicatory filings and would public Web site at http://www.nrc.gov/ contacting the NRC Electronic Filing constitute a Fair Use application, site-help/e-submittals.html. Participants Help Desk through the ‘‘Contact Us’’ participants are requested not to include may attempt to use other software not link located on the NRC Web site at copyrighted materials in their listed on the Web site, but should note http://www.nrc.gov/site-help/e- submission. that the NRC’s E-Filing system does not submittals.html, by email at If a person (other than AREVA) support unlisted software, and the NRC [email protected], or by a toll- requests a hearing, that person shall set Electronic Filing Help Desk will not be free call at (866) 672–7640. The NRC forth with particularity the manner in able to offer assistance in using unlisted Electronic Filing Help Desk is available which his interest is adversely affected software. between 9 a.m. and 7 p.m., Eastern by this CO and shall address the criteria If a participant is electronically Time, Monday through Friday, set forth in 10 CFR 2.309(d) and (f). submitting a document to the NRC in excluding government holidays. accordance with the E-Filing rule, the Participants who believe that they If a hearing is requested by a person participant must file the document have a good cause for not submitting whose interest is adversely affected, the using the NRC’s online, Web-based documents electronically must file an Commission will issue an order submission form. In order to serve exemption request, in accordance with designating the time and place of any documents through the Electronic 10 CFR 2.302(g), with their initial paper hearing. If a hearing is held, the issue to Information Exchange System (EIE), filing stating why there is good cause for be considered at such hearing shall be users will be required to install a Web not filing electronically and requesting whether this CO should be sustained. browser plug-in from the NRC Web site. authorization to continue to submit In the absence of any request for Further information on the Web-based documents in paper format. Such filings hearing, or written approval of an submission form, including the must be submitted by: (1) First class extension of time in which to request a installation of the Web browser plug-in, mail addressed to the Office of the hearing, the provisions specified in is available on the NRC’s public Web Secretary of the Commission, U.S. Section V above shall be final 30 days site at http://www.nrc.gov/site-help/e- Nuclear Regulatory Commission, from the date of this CO without further submittals.html. Washington, DC 20555–0001, Attention: order or proceedings. If an extension of Once a participant has obtained a Rulemaking and Adjudications Staff; or time for requesting a hearing has been digital ID certificate and a docket has (2) courier, express mail, or expedited approved, the provisions specified in been created, the participant can then delivery service to the Office of the Section V shall be final when the submit a request for hearing or petition Secretary, Sixteenth Floor, One White extension expires if a hearing request for leave to intervene through the EIE Flint North, 11555 Rockville Pike, has not been received. System. Submissions should be in Rockville, Maryland 20852, Attention: Dated at Rockville, Maryland, this 4th day Portable Document Format (PDF) in Rulemaking and Adjudications Staff. of August 2016. accordance with NRC guidance Participants filing a document in this For the Nuclear Regulatory Commission, available on the NRC public Web site at manner are responsible for serving the http://www.nrc.gov/site-help/e- document on all other participants. Patricia K. Holahan, submittals.html. A filing is considered Filing is considered complete by first- Director Office of Enforcement. complete at the time the documents are class mail as of the time of deposit in [FR Doc. 2016–19105 Filed 8–10–16; 8:45 am] submitted through the NRC’s E-Filing the mail, or by courier, express mail, or BILLING CODE 7590–01–P
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SECURITIES AND EXCHANGE lack of current and accurate information notice is hereby given that, on July 28, COMMISSION concerning the termination of the 2016, the Investors Exchange LLC auditor of Powder River Coal Corp. (‘‘IEX’’ or the ‘‘Exchange’’) filed with the [File No. 500–1] (Wyoming) because it has not filed any Securities and Exchange Commission In the Matter of Chang-On periodic reports since the period ended (the ‘‘Commission’’) the proposed rule International, Inc., Computer Graphics September 30, 2013. Its stock is quoted change as described in Items I and II International Inc., Guanwei Recycling on OTC Link under the ticker symbol below, which Items have been prepared Corp., John D. Oil and Gas Company, POWD. by the Exchange. The Commission is Legal Life Plans, Inc., Powder River It appears to the Securities and publishing this notice to solicit Coal Corp., Reunion Industries, Inc., Exchange Commission that there is a comments on the proposed rule change ThermoEnergy Corporation; Order of lack of current and accurate information from interested persons. Suspension of Trading concerning the termination of the auditor of Reunion Industries, Inc. I. Self-Regulatory Organization’s August 9, 2016. (Pennsylvania) because it has not filed Statement of the Terms of Substance of It appears to the Securities and any periodic reports since the period the Proposed Rule Change Exchange Commission that there is a ended September 30, 2007. Its stock is lack of current and accurate information quoted on OTC Link under the ticker Pursuant to the provisions of Section concerning the termination of the symbol RUNI. 19(b)(1) under the Securities Exchange auditor of Chang-On International, Inc. It appears to the Securities and Act of 1934 (‘‘Act’’),4 and Rule 19b–4 (China) because it has not filed any Exchange Commission that there is a thereunder,5 Investors Exchange LLC periodic reports since the period ended lack of current and accurate information (‘‘IEX’’ or ‘‘Exchange’’) is filing with the June 30, 2014. Its stock is quoted on concerning the termination of the Securities and Exchange Commission OTC Link (previously ‘‘Pink Sheets’’), auditor of ThermoEnergy Corporation (‘‘Commission’’) a proposed rule change operated by OTC Markets Group Inc. (Massachusetts) because it has not filed to correct the chart in Rule 11.270(c), (‘‘OTC Link’’), under the ticker symbol any periodic reports since the period which sets forth the numerical CAON. ended March 31, 2014. Its stock is guidelines for determining if a It appears to the Securities and quoted on OTC Link under the ticker transaction that is the subject of a Exchange Commission that there is a symbol TMEN. complaint shall be found to be clearly lack of current and accurate information The Commission is of the opinion that erroneous, to specify such guidelines for concerning the termination of the the public interest and the protection of leveraged exchange traded funds auditor of Computer Graphics investors require a suspension of trading (‘‘ETF’’) and exchange traded notes International Inc. (China) because it has in the securities of the above-listed (‘‘ETN’’). The Exchange has designated not filed any periodic reports since the companies. Therefore, it is ordered, period ended December 31, 2013. Its this rule change as ‘‘non-controversial’’ pursuant to Section 12(k) of the under Section 19(b)(3)(A) of the Act 6 stock is quoted on OTC Link under the Securities Exchange Act of 1934, that ticker symbol CGII. and provided the Commission with the trading in the securities of the above- notice required by Rule 19b–4(f)(6) It appears to the Securities and listed companies is suspended for the thereunder.7 Exchange Commission that there is a period from 9:30 a.m. EDT on August 9, lack of current and accurate information 2016, through 11:59 p.m. EDT on The text of the proposed rule change concerning the termination of the August 22, 2016. is available at the Exchange’s Web site auditor of Guanwei Recycling Corp. By the Commission. at www.iextrading.com, at the principal (China) because it has not filed any office of the Exchange, and at the Lynn M. Powalski, periodic reports since the period ended Commission’s Public Reference Room. March 31, 2014. Its stock is quoted on Deputy Secretary. OTC Link under the ticker symbol [FR Doc. 2016–19209 Filed 8–9–16; 4:15 pm] II. Self-Regulatory Organization’s GPRC. BILLING CODE 8011–01–P Statement of the Purpose of, and It appears to the Securities and Statutory Basis for, the Proposed Rule Exchange Commission that there is a Change lack of current and accurate information SECURITIES AND EXCHANGE concerning the termination of the COMMISSION In its filing with the Commission, the auditor of John D. Oil and Gas Company self-regulatory organization included [Release No. 34–78482; File No. SR–IEX– (Ohio) because it has not filed any statements concerning the purpose of 2016–06] periodic reports since the period ended and basis for the proposed rule change December 31, 2011. Its stock is quoted Self-Regulatory Organizations; and discussed any comments it received on OTC Link under the ticker symbol Investors Exchange LLC; Notice of on the proposed rule change. The text JDOGQ. Filing and Immediate Effectiveness of of these statement [sic] may be It appears to the Securities and Proposed Rule Change To Amend Rule examined at the places specified in Item Exchange Commission that there is a 11.270(c) Concerning Clearly IV below. The self-regulatory lack of current and accurate information Erroneous Executions organization has prepared summaries, concerning the termination of the set forth in Sections A, B, and C below, auditor of Legal Life Plans, Inc. August 5, 2016. of the most significant aspects of such (Tennessee) because it has not filed any 1 Pursuant to Section 19(b)(1) of the statements. periodic reports since the period ended Securities Exchange Act of 1934 (the August 31, 2013. Its stock is quoted on ‘‘Act’’) 2 and Rule 19b–4 thereunder,3 OTC Link under the ticker symbol 4 15 U.S.C. 78s(b)(1). LLFP. 1 15 U.S.C. 78s(b)(1). 5 17 CRF 240.19b–4. It appears to the Securities and 2 15 U.S.C. 78a. 6 15 U.S.C. 78s(b)(3)(A). Exchange Commission that there is a 3 17 CFR 240.19b–4. 7 17 CFR 240.19b–4.
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A. Self-Regulatory Organization’s consistency in the handling of such Commission believes that waiver of the Statement of the Purpose of, and the transactions. As noted above, the operative delay is consistent with the Statutory Basis for, the Proposed Rule proposed correction will assure that protection of investors and the public Change Rule 11.270 is substantially identical to, interest and waiver will allow IEX to and consistent with, the rules relating to update its rule without undue delay. 1. Purpose clearly erroneous transactions of FINRA Therefore, the Commission hereby The purpose of this proposed rule and the other equities exchanges.11 The waives the operative delay and filing is to correct the chart in Rule Exchange believes that it is appropriate designates the proposal operative upon 11.270(c), which sets forth the to make the specified correction to filing.15 numerical guidelines for determining if alleviate any confusion among market At any time within 60 days of the a transaction that is the subject of a participants. filing of the proposed rule change, the complaint shall be found to be clearly Commission summarily may erroneous, to specify such guidelines for B. Self-Regulatory Organization’s temporarily suspend such rule change if leveraged ETFs and ETNs. Due to an Statement on Burden on Competition it appears to the Commission that such oversight, the last line of the chart, IEX does not believe that the action is necessary or appropriate in the entitled ‘‘Leveraged ETF/ETN’’ does not proposed rule change will result in any public interest, for the protection of contain all necessary language with burden on competition because IEX is investors, or otherwise in furtherance of respect to the applicable numerical merely correcting its rule to correct an the purposes of the Act. guidelines. Accordingly, IEX proposes inadvertent omission of necessary text. IV. Solicitation of Comments to amend the chart so that the last line C. Self-Regulatory Organization’s Interested persons are invited to provides that the numerical guidelines Statement on Comments on the during regular market hours, as well as submit written data, views, and Proposed Rule Change Received From arguments concerning the foregoing, the Pre-Market Session and Post-Market Members, Participants, or Others Session, shall be the ‘‘Regular Market including whether the proposed rule Hours Numerical Guidelines multiplied Written comments were neither change is consistent with the Act. by the leverage multiplier (i.e., 2x).’’ solicited nor received. Comments may be submitted by any of The Exchange notes that Rule 11.270 III. Date of Effectiveness of the the following methods: is substantially identical to Bats BZX Proposed Rule Change and Timing for Electronic Comments Exchange, Inc. f/k/a BATS Exchange, Commission Action • Inc. (‘‘BZX’’) Rule 11.17, which in turn Use the Commission’s Internet The Exchange has designated this rule is substantially identical to comment form (http://www.sec.gov/ filing as non-controversial under corresponding rules of the other U.S. rules/sro.shtml); or Section 19(b)(3)(A) 12 of the Act and • securities exchanges that trade equities Send an email to rule-comments@ Rule 19b–4(f)(6) 13 thereunder. Because sec.gov. Please include File Number SR– securities and of the Financial Industry the proposed rule change does not: (i) IEX–2016–06 on the subject line. Regulatory Authority, Inc. (‘‘FINRA’’).8 Significantly affect the protection of Accordingly, the Exchange believes that Paper Comments investors or the public interest; (ii) it is appropriate to amend Rule impose any significant burden on • Send paper comments in triplicate 11.270(c) to correct the chart contained competition; and (iii) become operative to Secretary, Securities and Exchange therein. for 30 days from the date on which it Commission, 100 F Street NE., 2. Statutory Basis was filed, or such shorter time as the Washington, DC 20549–1090. IEX believes that the proposed rule Commission may designate, it has All submissions should refer to File change is consistent with the provisions become effective pursuant to Section Number SR–IEX–2016–06. This file of Section 6(b) 9 of the Act in general, 19(b)(3)(A) of the Act and Rule 19b– number should be included on the 14 and furthers the objectives of Section 4(f)(6) thereunder. The Exchange subject line if email is used. To help the 6(b)(5) of the Act 10 in particular, in that notes that its proposal corrects an Commission process and review your it is designed to prevent fraudulent and inadvertent omission and has asked the comments more efficiently, please use manipulative acts and practices, to Commission to waive the 30-day only one method. The Commission will promote just and equitable principles of operative delay, making this proposal post all comments on the Commission’s trade, to remove impediments to and operative upon filing. As noted above, Internet Web site (http://www.sec.gov/ perfect the mechanism of a free and IEX’s proposal adds rule text to IEX rules/sro.shtml). Copies of the open market and a national market Rule 11.270(c) that IEX inadvertently submission, all subsequent system, and, in general, to protect omitted, which conforms IEX’s rule to amendments, all written statements investors and the public interest. The the substantially identical BZX rule. As with respect to the proposed rule Exchange believes it is appropriate to this proposal will correct the error in change that are filed with the make the correction to the chart in Rule IEX’s rule, it should alleviate any Commission, and all written 11.270(c) so that the correct guideline is potential confusion among market communications relating to the used in its rules. Additionally, the participants. For this reason, the proposed rule change between the correction will create consistency with Commission and any person, other than the rules of other equities exchanges 11 See supra note 8 and accompanying text. those that may be withheld from the 12 and eliminate confusion in its rules. In 15 U.S.C. 78s(b)(3)(A). public in accordance with the 13 17 CFR 240.19b–4(f)(6). this regard, FINRA and the equities provisions of 5 U.S.C. 552, will be 14 15 U.S.C. 78s(b)(3)(A) and 17 CFR 240.19b– available for Web site viewing and exchanges have adopted substantially 4(f)(6), respectively. In addition, Rule 19b–4(f)(6) identical rules relating to clearly requires a self-regulatory organization to give the printing in the Commission’s Public erroneous transactions to provide Commission written notice of its intent to file the proposed rule change at least five business days 15 For purposes only of waiving the 30-day prior to the date of filing of the proposed rule operative delay, the Commission has also 8 See, e.g., BZX Rule 11.17. change, or such shorter time as designated by the considered the proposed rule’s impact on 9 15 U.S.C. 78f. Commission. The Exchange has satisfied this efficiency, competition, and capital formation. See 10 15 U.S.C. 78f(b)(5). requirement. 15 U.S.C. 78c(f).
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Reference Room, 100 F Street NE., proposed disaster recovery plans; and under its own trading rules and would Washington, DC 20549, on official (2) moving the text of current Rule 431 maintain its own order book in its business days between the hours of (Exchange Backup Systems and disaster recovery facility. In addition, 10:00 a.m. and 3:00 p.m. Copies of the Mandatory Testing) relating to Exchange quotes and trades would be published to filing also will be available for member organizations to Rule 49— the securities information processor inspection and copying at the principal Equities. This Amendment No. 1 (‘‘SIP’’) as quotes and trades of the office of the Exchange. All comments supersedes the original filing in its Exchange. To reflect this change, the received will be posted without change; entirety. The proposed rule change is Exchange proposes to delete Rule 49 the Commission does not edit personal available on the Exchange’s Web site at (Emergency Powers) in its entirety and identifying information from www.nyse.com, at the principal office of replace it with new proposed Rule submissions. You should submit only the Exchange, and at the Commission’s 49(a).4 information that you wish to make Public Reference Room. Second, the Exchange proposes to available publicly. All submissions move text from Rule 431 governing II. Self-Regulatory Organization’s should refer to File Number SR–IEX– Exchange Backup Systems and Statement of the Purpose of, and 2016–06, and should be submitted on or Mandatory Testing relating to equity Statutory Basis for, the Proposed Rule before September 1, 2016. member organizations, to proposed Rule Change For the Commission, by the Division of 49(b)(N) with only non-substantive Trading and Markets, pursuant to delegated In its filing with the Commission, the changes to update sub-paragraph authority.16 self-regulatory organization included numbering and cross references. Jill M. Peterson, statements concerning the purpose of, Because Rule 431 relates to mandatory Assistant Secretary. and basis for, the proposed rule change testing of the Exchange’s disaster [FR Doc. 2016–19052 Filed 8–10–16; 8:45 am] and discussed any comments it received recovery facility, as required by Rule 5 BILLING CODE 8011–01–P on the proposed rule change. The text 1004 of Regulation SCI, the Exchange of those statements may be examined at believes that moving the rule text from the places specified in Item IV below. Rule 431 to Rule 49 for its equity SECURITIES AND EXCHANGE The Exchange has prepared summaries, member organizations would make the COMMISSION set forth in sections A, B, and C below, Exchange’s rules easier to navigate by of the most significant parts of such consolidating equity rules with a [Release No. 34–78483; File No. SR– statements. NYSEMKT–2016–68] common theme into a single rule. To A. Self-Regulatory Organization’s incorporate that proposed Rule 49 Self-Regulatory Organizations; NYSE Statement of the Purpose of, and the would also cover mandatory testing MKT LLC; Notice of Filing of Proposed Statutory Basis for, the Proposed Rule requirements for its equity member Rule Change, Rule Change, as Change organizations, the Exchange also Modified by Amendment No. 1, proposes to change the title of Rule 49 Amending NYSE Rule 49—Equities 1. Purpose to ‘‘Exchange Business Continuity and Regarding: (1) The Exchange’s The Exchange proposes to amend Emergency Powers; (2) the Exchange’s Rule 49—Equities (‘‘Rule 49’’), which 4 Because the Exchange would not implement proposed Rule 49(a) until after an opportunity to Disaster Recovery Plans; and (3) addresses the Exchange’s emergency test it with Exchange member organizations, the Exchange Backup Systems and powers, by (1) replacing the text of Exchange proposes to retain current Rule 49 on its Mandatory Testing current Rule 49 with the Exchange’s books and not delete it until after proposed Rule proposed disaster recovery plans; and 49(a) is approved. The Exchange also proposes to August 5, 2016. file a separate proposed rule change to establish the (2) moving the text of current Rule 431 Pursuant to Section 19(b)(1) 1 of the operative date of paragraph (a) of proposed Rule 49 (Exchange Backup Systems and Securities Exchange Act of 1934 (the and delete the current version of the rule. To reduce Mandatory Testing) relating to Exchange the potential for any confusion regarding which ‘‘Act’’) 2 and Rule 19b–4 thereunder,3 equity member organizations to Rule 49 version of the rule governs, the Exchange proposes notice is hereby given that, on July 29, to add the following preamble to current Rule 49: with no substantive changes. The 2016, NYSE MKT LLC (the ‘‘Exchange’’ ‘‘This version of Rule 49—equities will remain Exchange further proposes to amend or ‘‘NYSE MKT’’) filed with the operative until the proposed rule changes described Rules 0—Equities and 431 to specify in SR–NYSEMKT–2016–68 are approved and the Securities and Exchange Commission that Rule 431 would govern Exchange Exchange files a separate proposed rule change to (the ‘‘Commission’’) the proposed rule delete this version of Rule 49—Equities and Backup Systems and Mandatory Testing change as described in Items I and II preamble and to establish the operative date of for Exchange ATP Holders only. below, which Items have been prepared paragraph (a) of ‘Rule 49—Equities. Exchange The Exchange proposes to amend Business Continuity and Disaster Recovery Plans by the self-regulatory organization. The Rule 49 in two ways. First, the Exchange and Mandatory Testing.’ Subject to such separate Commission is publishing this notice to proposed rule change, the Exchange will announce proposes to replace the current disaster via Trader Update the operative date of the deletion solicit comments on the proposed rule recovery plan, pursuant to which NYSE change from interested persons. of this Rule and implementation of paragraph (a) of Arca, Inc. (‘‘NYSE Arca’’), the Rule 49—Equities. Exchange Business Continuity I. Self-Regulatory Organization’s Exchange’s affiliate, will act on behalf of and Disaster Recovery Plans and Mandatory Testing.’’ The Exchange also proposes to add a Statement of the Terms of Substance of and at the direction of the Exchange for preamble to proposed Rule 49, which would the Proposed Rule Change auctions and specified regulatory provide: ‘‘The Exchange will file a separate The Exchange proposes to amend messages in Exchange-listed securities, proposed rule change to establish the operative date with a new disaster recovery plan that of paragraph (a) of this version of Rule 49—Equities Rule 49—Equities (Emergency Powers) and to delete ‘Rule 49—Equities. Emergency by (1) replacing the text of current Rule the Exchange would implement if the Powers’ and this preamble. Until such time, ‘Rule 49—Equities with the Exchange’s Exchange’s primary data center is 49—Equities. Emergency Powers’ will remain impaired. Under the proposed disaster operative. Subject to such separate proposed rule recovery plan, the Exchange would no change, the Exchange will announce via Trader 16 17 CFR 200.30–3(a)(12). Update the operative date of paragraph (a) of this 1 15 U.S.C. 78s(b)(1). longer rely on NYSE Arca to act on its Rule and deletion of ‘Rule 49—Equities. Emergency 2 15 U.S.C. 78a. behalf. Rather, the Exchange would Powers.’ ’’ 3 17 CFR 240.19b–4. operate as a fully electronic exchange 5 17 CFR 242.1004.
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Disaster Recovery Plans and Mandatory September 2014, the Exchange further Since adopting Rule 49, the Exchange Testing.’’ amended Rule 49 to revise how certain has amended its rules to provide for Because Rule 431 would pertain only messages are disseminated.10 Exchange-facilitated procedures for to options trading, the Exchange Under Rule 49, if the Exchange opening and closing securities if either proposes to amend that rule to delete declares an Emergency Condition, the a Designated Market Maker (‘‘DMM’’) or references to the terms ‘‘member,’’ Exchange will halt all trading on the the Exchange’s 11 Wall Street facilities ‘‘member organization,’’ and Exchange’s systems and facilities and are unavailable.14 Because the Exchange ‘‘designated market maker’’ and use the purge any unexecuted orders from the can now operate even in the absence of term ‘‘ATP Holder’’ instead. The Exchange’s own systems and facilities 11 Wall Street facilities, and because the Exchange also proposes to amend Rule as soon as practicable following Exchange’s Print as P disaster recovery 0—Equities to remove the reference to declaration of the Emergency plan is available in the exchange’s Rule 431 as being applicable to equities Condition.11 Beginning the next trading secondary data center, Rule 49 would be trading. day, NYSE Arca, on behalf of and at the invoked only if an Emergency Condition Background direction of the Exchange, will impacted the Exchange’s primary data disseminate the official opening, re- center. To date, the Exchange has not In 2012, the Exchange adopted Rule opening, and closing trades of invoked Rule 49. 49 to provide the Exchange with the Exchange-listed securities to the Proposed Rule Change authority to declare an Emergency Consolidated Tape as message of the Condition with respect to trading on or Exchange, and any notification for Proposed Rule 49(a) would govern the through the systems and facilities of the Exchange listed securities to the Exchange’s Disaster Recovery Facility. Exchange and to act as necessary in the Consolidated Quotation System of a As proposed, Rule 49(a)(1) would public interest and for the protection of regulatory halt and resumption of provide that, as part of its business investors.6 The authority in Rule 49 may trading thereafter, trading pause and continuity and disaster recovery plans, be exercised when, due to an Emergency resumption of trading thereafter, and the Exchange maintains a ‘‘Disaster Condition,7 the Exchange’s systems and Short Sale Price Test trigger and lifting Recovery Facility,’’ which is a facilities located at 11 Wall Street, New thereafter, as messages of the secondary data center located in a York, New York, including the Trading Exchange.12 geographically diverse location, as Floor, cannot be utilized, or if the In addition, bids and offers for required by Regulation SCI.15 This Exchange’s primary data center is Exchange-listed securities entered on or proposed rule text is intended to be impaired. If such an Emergency through the systems and facilities of definitional, and describes that the Condition is declared, a qualified NYSE Arca during the Emergency Exchange maintains a secondary data Exchange officer may designate NYSE Condition will be reported to the center. Arca to serve as a backup facility so that Proposed Rule 49(a)(2) would specify the Exchange, as a self-regulatory Consolidated Quotation system as bids and offers of NYSE Arca, except that the the procedures that the Exchange would organization (‘‘SRO’’), can remain follow if the Exchange determines under 8 opening quote will be reported to the operational. NYSE Arca also would Rule 51—Equities (‘‘Rule 51’’) to trade continue to operate simultaneously.9 In Consolidated Quotation System as a bid and/or offer of both the Exchange and Exchange-traded securities on its Disaster Recovery Facility. Currently, 6 See Securities Exchange Act Release No. 70822 NYSE Arca and any re-opening quote (November 6, 2013), 78 FR 68128 (November 13, will be reported to the Consolidated Rule 49(a)(1) provides that a qualified 2013) (SR–NYSEMKT–2013–66) (‘‘2013 Approval Quotation System as a bid and/or offer Exchange officer shall have the Order’’). At the same time, NYSE Arca amended of the Exchange only. Bids and offers for authority to declare an Emergency NYSE Arca Equities Rule 2.100 to provide that Condition and current Rule 49(a)(3)(B) NYSE Arca Equities would receive and process bids Exchange-listed securities executed on and offers in Exchange-listed securities on behalf of or through the systems and facilities of defines the term ‘‘qualified Exchange the Exchange. See id. (SR–NYSEArca–2013–77). NYSE Arca during the Emergency officer’’ to mean the ICE Chief Executive 7 Under current Rule 49, an ‘‘Emergency Condition will be reported to the Officer or his or her designee, or the Condition’’ means an emergency as defined in Chief Regulatory Officer of the Exchange Section 12(k)(7) of the Act, which is ‘‘(A) a major Consolidated Tape as executions of market disturbance characterized by or NYSE Arca, except for executions in the or his or her designee. The rule further constituting—(i) sudden and excessive fluctuations opening, re-opening, or closing provides that in the event that none of of securities prices generally, or a substantial threat transactions, which will be reported as these individuals is able to act due to thereof, that threaten fair and orderly markets; or incapacitation, the most senior (ii) a substantial disruption of the safe or efficient Exchange executions and Exchange 13 operation of the national system for clearance and volume only. Because intra-day quotes surviving officer of ICE or the Exchange settlement of transactions in securities, or a and trades in Exchange-listed securities shall be a ‘‘qualified Exchange officer’’ substantial threat thereof; or (B) a major disturbance would be reported to the SIP as quotes for purposes of Rule 49. that substantially disrupts, or threatens to and trades of NYSE Arca (except for the Rather than specifying separately in substantially disrupt—(i) the functioning of Rule 49 who can act under that rule, the securities markets, investment companies, or any opening, reopening and closing trades), other significant portion or segment of the securities this disaster recovery plan is referred to Exchange proposes to include in Rule markets; or (ii) the transmission or processing of the ‘‘Print as P’’ plan. securities transactions.’’ 15 U.S.C. 78l(k)(7). 14 See Rules 123D(a)(2)–(6)—Equities (describing 8 NYSE Arca trades equity securities on the process for the Exchange to facilitate the open and systems and facilities of its wholly owned N’’ plan. NYSE MKT did not have a corollary ‘‘Print reopen of trading) and Supplementary Material .10 subsidiary, NYSE Arca Equities, Inc., referred to as as A’’ plan. When the NYSE amended its NYSE to Rule 123C—Equities (describing process for the the ‘‘NYSE Arca Marketplace.’’ For the purposes of Rule 49 in 2013 and 2014, the Exchange adopted Exchange to facilitate the close of trading). an identical version of that rule as Rule 49. See this filing and in the text of Rule 49, these shall be 15 See 17 CFR 242.1001(a)(2)(v) (requiring 2013 Approval Order, supra note 5 (SR–NYSE– referred to collectively as the systems and facilities policies and procedures for business continuity and 2013–54). of NYSE Arca, or simply NYSE Arca. disaster recovery plans that including maintaining 10 9 The Exchange’s affiliate, New York Stock See Securities Exchange Act Release No. 73029 backup and recovery capabilities sufficiently Exchange LLC (‘‘NYSE’’), originally adopted a (Sept. 9, 2014), 79 FR 55061 (Sept. 15, 2014) (SR– resilient and geographically diverse and that are version of NYSE Rule 49 under which quotes and NYSEMKT–2014–75) (‘‘2014 Approval Order’’). reasonably designed to achieve next business day trades of NYSE-listed securities would continue to 11 See Rule 49(b)(1). resumption of trading and two-hour resumption of be reported to the SIP as quotes and trades of the 12 See Rule 49(b)(2)(A)(i) and (ii). critical SCI systems following a wide-scale NYSE. That plan was referred to as the ‘‘Print as 13 See Rule 49(2)(B). disruption).
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51 the authority to determine whether to The Exchange proposes that the Facility.18 DMMs would not be subject use the Exchange’s Disaster Recovery following would apply if the Exchange to any such obligations or benefits Facility. Rule 51(b) currently provides determines under Rule 51 to trade because the Exchange will not maintain that, except as may be otherwise Exchange-traded securities on its systems that support DMM quoting at its determined by the Exchange Board of Disaster Recovery Facility: Disaster Recovery Facility. DMMs that Directors, the Chief Executive Officer • Proposed Rule 49(a)(2)(A) would route orders to the Disaster Recovery (‘‘CEO’’) of the Exchange shall have the provide that the 11 Wall Street facilities Facility would trade no differently than power to: (i) Halt or suspend trading in would not be available for trading if the other market participants that some or all securities trading on the Exchange is operating from its Disaster electronically enter orders at the Exchange; (ii) extend the hours for the Recovery Facility. Because the trading Exchange, and would be subject to the transaction of business on the Exchange; systems in the Exchange’s Disaster fees and credits applicable to non-DMM (iii) close some or all Exchange Recovery Facility would not have transactions. facilities; or (iv) determine the duration connectivity to DMM and Floor broker Proposed Rule 49(a)(3) would provide of any halt, suspension or closing trading systems, the Exchange would that member organizations wishing to undertaken under this Rule. Rule 51(c) operate as a fully electronic exchange trade on the Exchange’s Disaster specifies the circumstances under when operating out of its Disaster Recovery Facility would be responsible which the CEO may take these actions, Recovery Facility, even if 11 Wall Street for having contingency plans for which includes a loss or interruption of facilities were not impacted. establishing connectivity to such facility facilities utilized by the Exchange.16 and changing routing instructions for • Proposed Rule 49(a)(2)(B) would The Exchange believes that the their order entry systems to send bids provide that opening and reopening authority to determine to trade and offers in Exchange-traded securities auctions would be subject to Rule Exchange-traded securities in its to such facility. This proposed rule text 123D(a)(2)–(6)—Equities and closing Disaster Recovery Facility should is based on current Rule 49(b)(3), but auctions would be subject to similarly be vested with the CEO of the references connectivity to the Supplementary Material .10 to Rule Exchange. Specifically, the CEO may Exchange’s Disaster Recovery Facility 123C—Equities. Because there would be already take the above-specified actions rather than connectivity to NYSE Arca. no Trading Floor or DMM connectivity, under Rule 51(b) if there is a loss or As noted above, because the Exchange the Exchange proposes that, when interruption of facilities utilized by the would no longer be designating NYSE operating out of its Disaster Recovery Exchange. The Exchange believes that a Arca to act on behalf of and at the Facility, the Exchange would facilitate loss or interruption of the Exchange’s direction of the Exchange, the Exchange all openings, reopenings, and closings, primary data center is an event would not include the provisions of as provided for in the enumerated rules. contemplated in Rule 51(c), and current Rule 49(a)(1) and (b) relating to As noted above, this is the Exchange’s therefore the authority to take an action such designation. The Exchange further current business continuity plan if the based on that event, whether proposes that the term ‘‘Emergency 11 Wall Street facilities were suspending trading or determining to Condition’’ and related definition, unavailable, but the Exchange could use the Disaster Recovery Facility, described in current Rule 49(a)(1), (2), continue to operate out of its primary should be determined by the same and (3)(A), would not be included in data center. person. Accordingly, the Exchange proposed Rule 49 because this language • proposes to add proposed Rule 51(b)(v) Proposed Rule 49(a)(2)(C) would has been superseded by Regulation SCI to specify that the CEO of the Exchange provide that any unexecuted orders Rule 1001(a)(2)(v).19 Likewise, the may determine to trade securities on the entered into Exchange systems before Exchange would not retain the current Exchange’s Disaster Recovery Facility trading on the Disaster Recovery Facility Rule 49(c)(2) requirement that the 17 pursuant to Rule 49. begins would be deemed cancelled and ability to invoke Rule 49(a) would be The Exchange also proposes non- would be purged from Exchange operative for only a ten-day period. The substantive amendments to Rule 51(b) systems. This proposed rule text is Exchange believes that, in the event of to provide that the CEO ‘‘may take any based on current Rule 49(b)(1)(B), which a wide-scale disruption, ten days may of the following actions’’ rather than to provides that when an Emergency not be enough time. provide that the CEO ‘‘shall have the Condition is declared, the Exchange will In addition, the Exchange is not power to.’’ The Exchange believes the purge any unexecuted orders from the proposing to include the subject of proposed amendment makes clear that Exchange’s own systems and facilities current Rule 49(b)(2)(A) and (B) in the CEO may invoke one or more of the as soon as practicable following proposed Rule 49. In the Exchange’s actions specified in Rule 51(b)(i)–(v). declaration of the Emergency Condition. proposed Disaster Recovery Facility, the For the same reason, the Exchange The Exchange proposes to modify this Exchange would be reporting all quotes proposes to make a conforming text in proposed Rule 49(a)(2)(C) to and trades to the SIP as quotes and amendment to Rule 51(c) to specify that make clear that any unexecuted orders trades of the Exchange. In addition, the the CEO shall take any of the actions entered into Exchange systems before Exchange would be disseminating described in paragraph (b) above. trading on the Disaster Recovery Facility regulatory messages for its listed begins would be deemed cancelled securities, including notifications of a 16 See Rule 51(c)(1). because depending on the scope of the regulatory halt and resumption of 17 Under Rule 1—Equities, the CEO may formally disruption, the Exchange may not be designate one or more qualified employees of trading thereafter, trading pause and Intercontinental Exchange Group, Inc. to act in able to transmit cancellation messages resumption of trading thereafter, and place of any person named in a rule as having for unexecuted orders. Short Sale Price Test trigger and lifting authority to act under such rule in the event that • the named person in the rule is not available to Proposed Rule 49(a)(2)(D) would thereafter. Accordingly, NYSE Arca administer that rule. Because Rule 1—Equities provide that member organizations already provides the authority to designated registered as DMMs would not be 18 See, e.g., Rules 103B(I)—Equities (quoting alternate qualified employees, the Exchange would subject to any DMM obligations or requirements for allocation process of listed not include rule text from current Rule 49(a)(3)(B) securities) and 104—Equities (Dealings and regarding who may be designated to act in proposed benefits under Exchange rules while Responsibilities of DMMs). Rule 51 in the absence of the CEO. securities trade on the Disaster Recovery 19 See 17 CFR 242.1001(a)(2)(v).
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would not be disseminating this rule change will assist in facilitating certain elements of current Rule 49 have information on behalf of the Exchange trading in Exchange-traded securities in been superseded, and therefore it would in the event it determines to trade the event the Exchange experiences a remove impediments to and perfect the Exchange-traded securities on its disruption in its primary data center. mechanism of a free and open market Disaster Recovery Facility. Accordingly, the proposed rule change and a national market system for Finally, the Exchange does not is designed to protect investors and the proposed Rule 49(a) not to include propose to retain the language in current public interest by providing for minimal specified provisions of the current rule. Rule 49(c)(1), regarding notification interruption of Exchange trading if the Specifically, the Exchange does not requirements to the Commission as Exchange experiences a wide-scale believe that proposed Rule 49(a) needs these have also been superseded by the disruption. The proposed rule change to be limited to what is currently notification requirements in Regulation would therefore remove impediments to defined as an ‘‘Emergency Condition’’ or SCI.20 Accordingly, current Rule and perfect the mechanism of a free and be invoked for only ten days because the 49(c)(1) is obsolete and does not need to open market and a national market proposed rule would be invoked as part be included in proposed Rule 49(a). system by providing for a business of a robust business continuity and As discussed above, proposed Rule continuity and disaster recovery plan 49(b)(N) would include all the text of that includes maintaining backup and disaster recovery plan in the event of a current Rule 431, with non-substantive recovery capabilities sufficiently wide-scale disruption, as required by 24 differences to update sub-paragraph resilient and geographically diverse and Rule 1001(a)(2)(v) of Regulation SCI. numbering and rule paragraph cross that is reasonably designed to achieve For similar reasons, the Exchange does references and to reference member next business day resumption of trading not believe that proposed Rule 49 needs organizations. The Exchange proposes and two-hour resumption of critical separate provisions specifying notice to designate this paragraph of proposed Exchange systems following a wide- requirements to the Commission Rule 49(b)(N) with an ‘‘N’’ to scale disruption, as required by because these are now required by Rule distinguish it from current Rule 49(b), as Regulation SCI.23 Moreover, the 1002(b) of Regulation SCI.25 both would be operative at the same Exchange believes that the proposed Finally, the Exchange believes that time. rule change would strengthen business moving the text of current Rule 431 * * * * * continuity planning for itself and its relating to equity member organizations As discussed above in footnote 3, member organizations, thereby to proposed Rule 49(b)(N), amending paragraph (a) of proposed Rule 49 benefiting market participants and Rule 431 to pertain only to ATP would not be operative until the investors generally. Holders, and renaming Rule 49 as Exchange has an opportunity to test it More specifically, the Exchange ‘‘Exchange Business Continuity and with Exchange member organizations. believes that the proposed rule change Disaster Recovery Plans and Mandatory The Exchange does not anticipate that would remove impediments to and the DR Facility will be available for perfect the mechanism of a free and Testing,’’ would remove impediments to testing in production until late in the open market and a national market and perfect the mechanism of a free and fourth quarter of 2016. The Exchange system because under the proposed open market and a national market will file a separate proposed rule change disaster recovery plan, the Exchange system because it would consolidate to establish the operative date of would maintain its own facility within into a single rule related content, i.e., paragraph (a) of proposed Rule 49, the Disaster Recovery Facility that the Exchange’s proposed equity disaster delete current ‘‘Rule 49—Equities. would disseminate to the SIP all quote recovery plan and mandatory testing Emergency Powers,’’ delete the and trade information, including requirements related to such plan. Thus, preamble to proposed Rule 49, and opening, reopening, and closing auction the proposed rule change would make delete the ‘‘N’’ designation to proposed information and intra-day quotes and the Exchange’s rules easier to navigate Rule 49(b). The operative date trades, as well as regulatory messages, for Exchange equity members, the established in such separate proposed as Exchange messages. Commission, and the public. rule change will also be announced via The Exchange further believes that the B. Self-Regulatory Organization’s Trader Update. The proposed changes to proposed rule change to vest the Statement on Burden on Competition Rule 49(b)(N), 51, and Rule 431 will be authority to determine to trade securities on the Exchange’s Disaster operative on approval of this proposed The Exchange does not believe that Recovery Facility pursuant to Rule 49 rule change. the proposed rule change will impose with the CEO, as provided for in 2. Statutory Basis proposed Rule 51(b)(v), would remove any burden on competition that is not necessary or appropriate in furtherance The Exchange believes that the impediments to and perfect the of the purposes of the Act. The proposed rule change is consistent with mechanism of a free and open market proposed rule change is designed to Section 6(b) of the Act,21 in general, and and a national market system because it facilitate trading in Exchange-listed furthers the objectives of Section 6(b)(5) would consolidate in a single rule the of the Act,22 in particular, because it is individual with authority to take securities on its Disaster Recovery designed to promote just and equitable specified actions. This proposed rule Facility. As such, the Exchange believes principles of trade and to remove change would also streamline the that the proposed rule change would impediments to and perfect the Exchange’s rules and procedures by promote competition for the benefit of mechanism of a free and open market providing for consistent authority of market participants and investors and a national market system, and in who may act when there is a loss or generally because it provides general, to protect investors and the interruption of facilities utilized by the transparency in terms of which rules public interest. Specifically, the Exchange. would govern trading in Exchange- Exchange believes that the proposed The Exchange also believes that, traded securities if they trade on the because the Exchange is now subject to Exchange’s Disaster Recovery Facility. 20 17 CFR 242.1002(b)(1). the requirements of Regulation SCI, 21 15 U.S.C. 78f(b). 24 17 CFR 242.1001(a)(2)(v). 22 15 U.S.C. 78f(b)(5). 23 See supra note 4. 25 17 CFR 242.1002(b).
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C. Self-Regulatory Organization’s provisions of 5 U.S.C. 552, will be I. Self-Regulatory Organization’s Statement on Comments on the available for Web site viewing and Statement of the Terms of Substance of Proposed Rule Change Received From printing in the Commission’s Public the Proposed Rule Change Members, Participants, or Others Reference Room, 100 F Street NE., The Exchange proposes to amend No written comments were solicited Washington, DC 20549, on official NYSE Rule 49 (Emergency Powers) by or received with respect to the proposed business days between the hours of (1) replacing the text of current Rule 49 rule change. 10:00 a.m. and 3:00 p.m. Copies of the with the Exchange’s proposed disaster filing also will be available for recovery plans; and (2) moving the text III. Date of Effectiveness of the inspection and copying at the principal of current Rule 438 (Exchange Backup Proposed Rule Change and Timing for office of the Exchange. All comments Systems and Mandatory Testing) to Rule Commission Action received will be posted without change; 49. This Amendment No. 1 supersedes Within 45 days of the date of the Commission does not edit personal the original filing in its entirety. The publication of this notice in the Federal identifying information from proposed rule change is available on the Register or up to 90 days (i) as the submissions. You should submit only Exchange’s Web site at www.nyse.com, Commission may designate if it finds information that you wish to make at the principal office of the Exchange, such longer period to be appropriate available publicly. All submissions and at the Commission’s Public and publishes its reasons for so finding should refer to File Number SR– Reference Room. NYSEMKT–2016–68, and should be or (ii) as to which the self-regulatory II. Self-Regulatory Organization’s submitted on or before September 1, organization consents, the Commission Statement of the Purpose of, and 2016. will: Statutory Basis for, the Proposed Rule (A) By order approve or disapprove For the Commission, by the Division of Change the proposed rule change, or Trading and Markets, pursuant to delegated In its filing with the Commission, the (B) institute proceedings to determine 26 authority. self-regulatory organization included whether the proposed rule change Jill M. Peterson, should be disapproved. statements concerning the purpose of, Assistant Secretary. and basis for, the proposed rule change IV. Solicitation of Comments [FR Doc. 2016–19053 Filed 8–10–16; 8:45 am] and discussed any comments it received Interested persons are invited to BILLING CODE 8011–01–P on the proposed rule change. The text submit written data, views, and of those statements may be examined at arguments concerning the foregoing, the places specified in Item IV below. including whether the proposed rule SECURITIES AND EXCHANGE The Exchange has prepared summaries, change is consistent with the Act. COMMISSION set forth in sections A, B, and C below, Comments may be submitted by any of of the most significant parts of such the following methods: [Release No. 34–78484; File No. SR–NYSE– statements. Electronic Comments 2016–48] A. Self-Regulatory Organization’s • Statement of the Purpose of, and the Use the Commission’s Internet Self-Regulatory Organizations; New Statutory Basis for, the Proposed Rule comment form (http://www.sec.gov/ York Stock Exchange LLC; Notice of Change rules/sro.shtml); or Filing of Proposed Rule Change, as • Send an email to rule-comments@ Modified by Amendment No. 1, 1. Purpose sec.gov. Please include File Number SR– Amending NYSE Rule 49 Regarding: The Exchange proposes to amend NYSEMKT–2016–68 on the subject line. (1) The Exchange’s Emergency Rule 49, which addresses the Paper Comments Powers; (2) the Exchange’s Disaster Exchange’s emergency powers, by (1) Recovery Plans; and (3) Exchange replacing the text of current Rule 49 • Send paper comments in triplicate Backup Systems and Mandatory with the Exchange’s proposed disaster to Brent J. Fields, Secretary, Securities Testing recovery plans; and (2) moving the text and Exchange Commission, 100 F Street of current Rule 438 (Exchange Backup NE., Washington, DC 20549–1090. August 5, 2016. Systems and Mandatory Testing) to Rule All submissions should refer to File Pursuant to Section 19(b)(1) 1 of the 49 with no substantive changes. Number SR–NYSEMKT–2016–68. This Securities Exchange Act of 1934 (the The Exchange proposes to amend file number should be included on the ‘‘Act’’) 2 and Rule 19b–4 thereunder,3 Rule 49 in two ways. First, the Exchange subject line if email is used. To help the notice is hereby given that, on July 29, proposes to replace the current disaster Commission process and review your 2016, New York Stock Exchange LLC recovery plan, pursuant to which NYSE comments more efficiently, please use (‘‘NYSE’’ or the ‘‘Exchange’’) filed with Arca, Inc. (‘‘NYSE Arca’’), the only one method. The Commission will the Securities and Exchange Exchange’s affiliate, acts on behalf of post all comments on the Commission’s Commission (the ‘‘Commission’’) the and at the direction of the Exchange for Internet Web site (http://www.sec.gov/ proposed rule change as described in auctions and specified regulatory rules/sro.shtml). Copies of the Items I, and II below, which Items have messages in Exchange-listed securities, submission, all subsequent been prepared by the self-regulatory with a new disaster recovery plan that amendments, all written statements organization. The Commission is the Exchange would implement if the with respect to the proposed rule publishing this notice to solicit Exchange’s primary data center is change that are filed with the comments on the proposed rule change impaired. Under the proposed disaster Commission, and all written from interested persons. recovery plan, the Exchange would no communications relating to the longer rely on NYSE Arca to act on its proposed rule change between the 26 17 CFR 200.30–3(a)(12). behalf. Rather, the Exchange would Commission and any person, other than 1 15 U.S.C. 78s(b)(1). operate as a fully electronic exchange those that may be withheld from the 2 15 U.S.C. 78a. under its own trading rules and would public in accordance with the 3 17 CFR 240.19b–4. maintain its own order book in its
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disaster recovery facility. In addition, through the systems and facilities of the September 2014, the Exchange further quotes and trades would be published to Exchange and to act as necessary in the amended Rule 49 to revise how certain the securities information processor public interest and for the protection of messages are disseminated.10 (‘‘SIP’’) as quotes and trades of the investors.6 The authority in Rule 49 may Under current Rule 49, if the Exchange. To reflect this change, the be exercised when, due to an Emergency Exchange declares an Emergency Exchange proposes to delete Rule 49 Condition,7 the Exchange’s systems and Condition, the Exchange will halt all (Emergency Powers) in its entirety and facilities located at 11 Wall Street, New trading on the Exchange’s systems and replace it with new proposed Rule York, New York, including the NYSE facilities and purge any unexecuted 49(a).4 Trading Floor, cannot be utilized, or if orders from the Exchange’s own systems Second, the Exchange proposes to the Exchange’s primary data center is and facilities as soon as practicable move text from Rule 438 governing impaired. If such an Emergency following declaration of the Emergency Exchange Backup Systems and Condition is declared, a qualified Condition.11 Beginning the next trading Mandatory Testing, to proposed Rule Exchange officer may designate NYSE day, NYSE Arca, on behalf of and at the 49(b)(N) with only non-substantive Arca to serve as a backup facility so that direction of the Exchange, will changes to update sub-paragraph the Exchange, as a self-regulatory disseminate the official opening, re- numbering and cross references. organization (‘‘SRO’’), can remain opening, and closing trades of Because Rule 438 relates to mandatory operational.8 NYSE Arca also would Exchange-listed securities to the testing of the Exchange’s disaster continue to operate simultaneously. Consolidated Tape as message of the recovery facility, as required by Rule Because under the original version of Exchange, and any notification for 1004 of Regulation SCI,5 the Exchange Rule 49, quotes and trades of Exchange- Exchange listed securities to the believes that moving the rule text from listed securities would continue to be Consolidated Quotation System of a Rule 438 to Rule 49 would make the reported to the SIP as quotes and trades regulatory halt and resumption of Exchange’s rules easier to navigate by of the Exchange, this disaster recovery trading thereafter, trading pause and consolidating rules with a common plan was referred to as the ‘‘Print as N’’ resumption of trading thereafter, and theme into a single rule. To incorporate plan. Short Sale Price Test trigger and lifting that proposed Rule 49 would also cover In November 2013, the Securities and thereafter, as messages of the mandatory testing requirements, the Exchange Commission (‘‘Commission’’) Exchange.12 Exchange also proposes to change the approved amendments to Rule 49 that In addition, bids and offers for title of Rule 49 to ‘‘Exchange Business were designed to more effectively Exchange-listed securities entered on or Continuity and Disaster Recovery Plans delineate the SRO functions of the through the systems and facilities of and Mandatory Testing.’’ Exchange and NYSE Arca during an NYSE Arca during the Emergency Emergency Condition, reflect the Condition will be reported to the Background operational preferences of the industry, Consolidated Quotation system as bids In 2009, the Exchange adopted Rule and reflect the structure of member and offers of NYSE Arca, except that the 49 to provide the Exchange with the organization connectivity to and system opening quote will be reported to the authority to declare an Emergency coding for exchange systems.9 In Consolidated Quotation System as a bid Condition with respect to trading on or and/or offer of both the Exchange and 6 See Securities Exchange Act Release No. 61177 NYSE Arca and any re-opening quote 4 Because the Exchange would not implement (December 16, 2009), 74 FR 68643 (December 28, will be reported to the Consolidated proposed Rule 49(a) until after an opportunity to 2009) (SR–NYSE–2009–105) (‘‘2009 Approval Quotation System as a bid and/or offer test it with Exchange member organizations, the Order’’). At the same time, NYSE Arca amended Exchange proposes to retain current Rule 49 on its NYSE Arca Equities Rule 2.100 to provide that of the Exchange only. Bids and offers for books and not delete it until after proposed Rule NYSE Arca Equities would receive and process bids Exchange-listed securities executed on 49(a) is approved. The Exchange also proposes to and offers in Exchange-listed securities on behalf of or through the systems and facilities of file a separate proposed rule change to establish the the Exchange. See Securities Exchange Act Release NYSE Arca during the Emergency operative date of paragraph (a) of proposed Rule 49 No. 61178 (Dec. 16, 2009), 74 FR 68434 (Dec. 24, and delete the current version of the Rule. To 2009) (SR–NYSEArca–2009–90). Condition will be reported to the reduce the potential for any confusion regarding 7 Under current Rule 49, an ‘‘Emergency Consolidated Tape as executions of which version of the rule governs, the Exchange Condition’’ means an emergency as defined in NYSE Arca, except for executions in the proposes to add the following preamble to current Section 12(k)(7) of the Act, which is ‘‘(A) a major opening, re-opening, or closing Rule 49: ‘‘This version of Rule 49 will remain market disturbance characterized by or operative until the proposed rule changes described constituting—(i) sudden and excessive fluctuations transactions, which will be reported as in SR–NYSE–2016–48 are approved and the of securities prices generally, or a substantial threat Exchange executions and Exchange Exchange files a separate proposed rule change to thereof, that threaten fair and orderly markets; or volume only.13 Because intra-day quotes delete this version of Rule 49 and preamble and to (ii) a substantial disruption of the safe or efficient and trades in Exchange-listed securities establish the operative date of paragraph (a) of ‘Rule operation of the national system for clearance and 49. Exchange Business Continuity and Disaster settlement of transactions in securities, or a would be reported to the SIP as quotes Recovery Plans and Mandatory Testing.’ Subject to substantial threat thereof; or (B) a major disturbance and trades of NYSE Arca (except for the such separate proposed rule change, the Exchange that substantially disrupts, or threatens to opening, reopening and closing trades), will announce via Trader Update the operative date substantially disrupt—(i) the functioning of this disaster recovery plan is referred to of the deletion of this Rule and implementation of securities markets, investment companies, or any paragraph (a) of Rule 49. Exchange Business other significant portion or segment of the securities the ‘‘Print as P’’ plan. Continuity and Disaster Recovery Plans and markets; or (ii) the transmission or processing of Since adopting Rule 49, the Exchange Mandatory Testing.’’ The Exchange also proposes to securities transactions.’’ 15 U.S.C. 78l(k)(7). has amended its rules to provide for add a preamble to proposed Rule 49, which would 8 NYSE Arca trades equity securities on the Exchange-facilitated procedures for provide: ‘‘The Exchange will file a separate systems and facilities of its wholly owned proposed rule change to establish the operative date subsidiary, NYSE Arca Equities, Inc., referred to as of paragraph (a) of this version of Rule 49 and to the ‘‘NYSE Arca Marketplace.’’ For the purposes of Rule 49 as well as amendments to NYSE Arca Rule delete ‘Rule 49. Emergency Powers’ and this this filing and in the text of Rule 49, these shall be 2.100 and adoption of NYSE MKT LLC (‘‘NYSE preamble. Until such time, ‘Rule 49. Emergency referred to collectively as the systems and facilities MKT’’) Rule 49—Equities. Powers’ will remain operative. Subject to such of NYSE Arca, or simply NYSE Arca. 10 See Securities Exchange Act Release No. 73028 separate proposed rule change, the Exchange will 9 See Securities Exchange Act Release No. 70822 (Sept. 9, 2014), 79 FR 55056 (Sept. 15, 2014) (SR– announce via Trader Update the operative date of (November 6, 2013), 78 FR 68128 (November 13, NYSE–2014–48) (‘‘2014 Approval Order’’). paragraph (a) of this Rule and deletion of ‘Rule 49. 2013) (SR–NYSE–2013–54; SR–NYSEMKT–2013– 11 See Rule 49(b)(1). Emergency Powers.’ ’’ 66; SR–NYSEArca–2013–77) (‘‘2013 Approval 12 See Rule 49(b)(2)(A)(i) and (ii). 5 17 CFR 242.1004. Order’’). This release approved the amendment to 13 See Rule 49(2)(B).
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opening and closing securities if either Facility. Rule 51(b) currently provides Exchange-traded securities on its a Designated Market Maker (‘‘DMM’’) or that, except as may be otherwise Disaster Recovery Facility: the Exchange’s 11 Wall Street facilities determined by the Exchange Board of • Proposed Rule 49(a)(2)(A) would are unavailable for one or more Directors, the Chief Executive Officer provide that the 11 Wall Street facilities securities.14 Because the Exchange can (‘‘CEO’’) of the Exchange shall have the would not be available for trading if the now operate even in the absence of 11 power to: (i) Halt or suspend trading in Exchange is operating from its Disaster Wall Street facilities, and because the some or all securities trading on the Recovery Facility. Because the trading Exchange’s Print as P disaster recovery Exchange; (ii) extend the hours for the systems in the Exchange’s Disaster plan is available in the exchange’s transaction of business on the Exchange; Recovery Facility would not have secondary data center, Rule 49 would be (iii) close some or all Exchange connectivity to DMM and Floor broker invoked only if an Emergency Condition facilities; or (iv) determine the duration trading systems, the Exchange would impacted the Exchange’s primary data of any halt, suspension or closing operate as a fully electronic exchange center. To date, the Exchange has not undertaken under this Rule. Rule 51(c) when operating out of its Disaster invoked Rule 49. specifies the circumstances under Recovery Facility, even if 11 Wall Street which the CEO may take these actions, facilities were not impacted. Proposed Rule Change which includes a loss or interruption of • Proposed Rule 49(a)(2)(B) would Proposed Rule 49(a) would govern the facilities utilized by the Exchange.16 provide that opening and reopening Exchange’s Disaster Recovery Facility. The Exchange believes that the auctions would be subject to Rule As proposed, Rule 49(a)(1) would authority to determine to trade 123D(a)(2)–(6) and closing auctions provide that, as part of its business Exchange-traded securities in its would be subject to Supplementary continuity and disaster recovery plans, Disaster Recovery Facility should Material .10 to Rule 123C. Because there the Exchange maintains a ‘‘Disaster similarly be vested with the CEO of the would be no Trading Floor or DMM Recovery Facility,’’ which is a Exchange. Specifically, the CEO may connectivity, the Exchange proposes secondary data center located in a already take the above-specified actions that, when operating out of its Disaster geographically diverse location, as under Rule 51(b) if there is a loss or Recovery Facility, the Exchange would required by Regulation SCI.15 This interruption of facilities utilized by the facilitate all openings, reopenings, and proposed rule text is intended to be Exchange. The Exchange believes that a closings, as provided for in the definitional, and describes that the loss or interruption of the Exchange’s enumerated rules. As noted above, this Exchange maintains a secondary data primary data center is an event is the Exchange’s current business center. contemplated in Rule 51(c), and continuity plan if the 11 Wall Street Proposed Rule 49(a)(2) would specify therefore the authority to take an action facilities were unavailable, but the the procedures that the Exchange would based on that event, whether Exchange could continue to operate out follow if the Exchange determines under suspending trading or determining to of its primary data center. Rule 51 to trade Exchange-traded use the Disaster Recovery Facility, • Proposed Rule 49(a)(2)(C) would securities on its Disaster Recovery should be determined by the same provide that any unexecuted orders Facility. Currently, Rule 49(a)(1) person. Accordingly, the Exchange entered into Exchange systems before provides that a qualified Exchange proposes to add proposed Rule 51(b)(v) trading on the Disaster Recovery Facility officer shall have the authority to to specify that the CEO of the Exchange begins would be deemed cancelled and declare an Emergency Condition and may determine to trade securities on the would be purged from Exchange current Rule 49(a)(3)(B) defines the term Exchange’s Disaster Recovery Facility systems. This proposed rule text is ‘‘qualified Exchange officer’’ to mean pursuant to Rule 49.17 based on current Rule 49(b)(1)(B), which the ICE Chief Executive Officer or his or The Exchange also proposes non- provides that when an Emergency her designee, or the Chief Regulatory substantive amendments to Rule 51(b) Condition is declared, the Exchange will Officer of the Exchange or his or her to provide that the CEO ‘‘may take any purge any unexecuted orders from the designee. The rule further provides that of the following actions’’ rather than to Exchange’s own systems and facilities in the event that none of these provide that the CEO ‘‘shall have the as soon as practicable following individuals is able to act due to power to.’’ The Exchange believes the declaration of the Emergency Condition. incapacitation, the most senior proposed amendment makes clear that The Exchange proposes to modify this surviving officer of ICE or the Exchange the CEO may invoke one or more of the text in proposed Rule 49(a)(2)(C) to shall be a ‘‘qualified Exchange officer’’ actions specified in Rule 51(b)(i)–(v). make clear that any unexecuted orders for purposes of Rule 49. For the same reason, the Exchange entered into Exchange systems before Rather than specifying separately in proposes to make a conforming trading on the Disaster Recovery Facility Rule 49 who can act under that rule, the amendment to Rule 51(c) to specify that begins would be deemed cancelled Exchange proposes to include in Rule the CEO shall take any of the actions because depending on the scope of the 51 the authority to determine whether to described in paragraph (b) above. disruption, the Exchange may not be use the Exchange’s Disaster Recovery The Exchange proposes that the able to transmit cancellation messages following would apply if the Exchange for unexecuted orders. 14 See Rules 123D(a)(2)–(6) (describing process for determines under Rule 51 to trade • Proposed Rule 49(a)(2)(D) would the Exchange to facilitate the open and reopen of provide that member organizations trading) and Supplementary Material .10 to Rule 16 See Rule 51(c)(1). registered as DMMs would not be 123C (describing process for the Exchange to 17 Under Rule 1, the CEO may formally designate facilitate the close of trading). one or more qualified employees of Intercontinental subject to any DMM obligations or 15 See 17 CFR 242.1001(a)(2)(v) (requiring Exchange Group, Inc. to act in place of any person benefits under Exchange rules while policies and procedures for business continuity and named in a rule as having authority to act under securities trade on the Disaster Recovery disaster recovery plans that including maintaining such rule in the event that the named person in the Facility.18 DMMs would not be subject backup and recovery capabilities sufficiently rule is not available to administer that rule. Because resilient and geographically diverse and that are Rule 1 already provides the authority to designated to any such obligations or benefits reasonably designed to achieve next business day alternate qualified employees, the Exchange would resumption of trading and two-hour resumption of not include rule text from current Rule 49(a)(3)(B) 18 See, e.g., Rules 103B(I) (quoting requirements critical SCI systems following a wide-scale regarding who may be designated to act in proposed for allocation process of listed securities) and 104 disruption). Rule 51 in the absence of the CEO. (Dealings and Responsibilities of DMMs).
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because the Exchange will not maintain Finally, the Exchange does not interruption of Exchange trading if the systems that support DMM quoting at its propose to retain the language in current Exchange experiences a wide-scale Disaster Recovery Facility. DMMs that Rule 49(c)(1), regarding notification disruption. The proposed rule change route orders to the Disaster Recovery requirements to the Commission as would therefore remove impediments to Facility would trade no differently than these have also been superseded by the and perfect the mechanism of a free and other market participants that notification requirements in Regulation open market and a national market electronically enter orders at the SCI.20 Accordingly, current Rule system by providing for a business Exchange, and would be subject to the 49(c)(1) is obsolete and does not need to continuity and disaster recovery plan fees and credits applicable to non-DMM be included in proposed Rule 49(a). that includes maintaining backup and transactions. As discussed above, proposed Rule recovery capabilities sufficiently Proposed Rule 49(a)(3) would provide 49(b)(N) would include all the text of resilient and geographically diverse and that member organizations wishing to current Rule 438, with non-substantive that is reasonably designed to achieve trade on the Exchange’s Disaster differences to update sub-paragraph next business day resumption of trading Recovery Facility would be responsible numbering and rule paragraph cross and two-hour resumption of critical for having contingency plans for references. The Exchange proposes to Exchange systems following a wide- establishing connectivity to such facility designate this paragraph of proposed scale disruption, as required by and changing routing instructions for Rule 49(b)(N) with an ‘‘N’’ to Regulation SCI.23 Moreover, the their order entry systems to send bids distinguish it from current Rule 49(b), as Exchange believes that the proposed and offers in Exchange-traded securities both would be operative at the same rule change would strengthen business to such facility. This proposed rule text time. continuity planning for itself and its is based on current Rule 49(b)(3), but * * * * * member organizations, thereby references connectivity to the As discussed above in footnote 3, benefiting market participants and Exchange’s Disaster Recovery Facility paragraph (a) of proposed Rule 49(a) investors generally. rather than connectivity to NYSE Arca. would not be operative until the More specifically, the Exchange As noted above, because the Exchange Exchange has an opportunity to test it believes that the proposed rule change would no longer be designating NYSE with Exchange member organizations. would remove impediments to and Arca to act on behalf of and at the The Exchange does not anticipate that perfect the mechanism of a free and direction of the Exchange, the Exchange the DR Facility will be available for open market and a national market would not include the provisions of testing in production until late in the system because under the proposed current Rule 49(a)(1) and (b) relating to fourth quarter of 2016. The Exchange disaster recovery plan, the Exchange such designation. The Exchange further will file a separate proposed rule change would maintain its own facility within proposes that the term ‘‘Emergency to establish the operative date of the Disaster Recovery Facility that would disseminate to the SIP all quote Condition’’ and related definition, paragraph (a) of proposed Rule 49, and trade information, including described in current Rule 49(a)(1), (2), delete current ‘‘Rule 49. Emergency opening, reopening, and closing auction and (3)(A), would not be included in Powers,’’ delete the preamble to information and intra-day quotes and proposed Rule 49 because this language proposed Rule 49, and delete the ‘‘N’’ trades, as well as regulatory messages, has been superseded by Regulation SCI designation to proposed Rule 49(b). The as Exchange messages. Rule 1001(a)(2)(v).19 Likewise, the operative date established in such separate proposed rule change will also The Exchange further believes that the Exchange would not retain the current proposed rule change to vest the Rule 49(c)(2) requirement that the be announced via Trader Update. The proposed changes to Rule 49(b)(N), 51, authority to determine to trade ability to invoke Rule 49(a) would be securities on the Exchange’s Disaster operative for only a ten-day period. The and Rule 438 will be operative on approval of this proposed rule change. Recovery Facility pursuant to Rule 49 Exchange believes that, in the event of with the CEO, as provided for in a wide-scale disruption, ten days may 2. Statutory Basis proposed Rule 51(b)(v), would remove not be enough time. The Exchange believes that the impediments to and perfect the In addition, the Exchange is not proposed rule change is consistent with mechanism of a free and open market proposing to include the subject of Section 6(b) of the Act,21 in general, and and a national market system because it current Rule 49(b)(2)(A) and (B) in furthers the objectives of Section 6(b)(5) would consolidate in a single rule the proposed Rule 49. In the Exchange’s of the Act,22 in particular, because it is individual with authority to take proposed Disaster Recovery Facility, the designed to promote just and equitable specified actions. This proposed rule Exchange would be reporting all quotes principles of trade and to remove change would also streamline the and trades to the SIP as quotes and impediments to and perfect the Exchange’s rules and procedures by trades of the Exchange. In addition, the mechanism of a free and open market providing for consistent authority of Exchange would be disseminating and a national market system, and in who may act when there is a loss or regulatory messages for its listed general, to protect investors and the interruption of facilities utilized by the securities, including notifications of a public interest. Specifically, the Exchange. regulatory halt and resumption of Exchange believes that the proposed The Exchange also believes that, trading thereafter, trading pause and rule change will assist in facilitating because the Exchange is now subject to resumption of trading thereafter, and trading in Exchange-traded securities in the requirements of Regulation SCI, Short Sale Price Test trigger and lifting the event the Exchange experiences a certain elements of current Rule 49 have thereafter. Accordingly, NYSE Arca disruption in its primary data center. been superseded, and therefore it would would not be disseminating this Accordingly, the proposed rule change remove impediments to and perfect the information on behalf of the Exchange is designed to protect investors and the mechanism of a free and open market in the event it determines to trade public interest by providing for minimal and a national market system for Exchange-traded securities on its proposed Rule 49(a) not to include Disaster Recovery Facility. 20 17 CFR 242.1002(b)(1). specified provisions of the current rule. 21 15 U.S.C. 78f(b). 19 See 17 CFR 242.1001(a)(2)(v). 22 15 U.S.C. 78f(b)(5). 23 See supra note 5.
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Specifically, the Exchange does not III. Date of Effectiveness of the inspection and copying at the principal believe that proposed Rule 49(a) needs Proposed Rule Change and Timing for office of the Exchange. All comments to be limited to what is currently Commission Action received will be posted without change; defined as an ‘‘Emergency Condition’’ or Within 45 days of the date of the Commission does not edit personal be invoked for only ten days because the publication of this notice in the Federal identifying information from proposed rule would be invoked as part Register or up to 90 days (i) as the submissions. You should submit only of a robust business continuity and Commission may designate if it finds information that you wish to make disaster recovery plan in the event of a such longer period to be appropriate available publicly. All submissions wide-scale disruption, as required by and publishes its reasons for so finding should refer to File Number SR–NYSE– Rule 1001(a)(2)(v) of Regulation SCI.24 or (ii) as to which the self-regulatory 2016–48, and should be submitted on or For similar reasons, the Exchange does organization consents, the Commission before September 1, 2016. not believes that proposed Rule 49 will: For the Commission, by the Division of needs separate provisions specifying (A) By order approve or disapprove Trading and Markets, pursuant to delegated 26 notice requirements to the Commission the proposed rule change, or authority. because these are now required by Rule (B) institute proceedings to determine Jill M. Peterson, 1002(b) of Regulation SCI.25 whether the proposed rule change Assistant Secretary. [FR Doc. 2016–19054 Filed 8–10–16; 8:45 am] Finally, the Exchange believes that should be disapproved. BILLING CODE 8011–01–P moving the text of current Rule 438 to IV. Solicitation of Comments proposed Rule 49(b)(N), and renaming Interested persons are invited to Rule 49 as ‘‘Exchange Business submit written data, views, and SECURITIES AND EXCHANGE Continuity and Disaster Recovery Plans arguments concerning the foregoing, COMMISSION and Mandatory Testing,’’ would remove including whether the proposed rule impediments to and perfect the [Release No. 34–78485; File No. SR– change is consistent with the Act. NYSEArca–2016–115] mechanism of a free and open market Comments may be submitted by any of and a national market system because it the following methods: Self-Regulatory Organizations; NYSE would consolidate into a single rule Arca, Inc.; Notice of Filing and Electronic Comments related content, i.e., the Exchange’s Immediate Effectiveness of Proposed proposed disaster recovery plan and • Use the Commission’s Internet Rule Change To Amend the NYSE Arca mandatory testing requirements related comment form (http://www.sec.gov/ Options Fee Schedule to such plan. Thus, the proposed rule rules/sro.shtml); or change would make the Exchange’s • Send an email to rule-comments@ August 5, 2016. rules easier to navigate for Exchange sec.gov. Please include File Number SR– Pursuant to Section 19(b)(1) of the members, the Commission, and the NYSE–2016–48 on the subject line. Securities Exchange Act of 1934 public. (‘‘Act’’),1 and Rule 19b–4 thereunder,2 Paper Comments notice is hereby given that, on August B. Self-Regulatory Organization’s • Send paper comments in triplicate 1, 2016, NYSE Arca, Inc. (‘‘NYSE Arca’’ Statement on Burden on Competition to Brent J. Fields, Secretary, Securities or ‘‘Exchange’’) filed with the Securities and Exchange Commission, 100 F Street and Exchange Commission (‘‘SEC’’ or The Exchange does not believe that NE., Washington, DC 20549–1090. ‘‘Commission’’) the proposed rule the proposed rule change will impose All submissions should refer to File change as described in Items I, II, and any burden on competition that is not III below, which Items have been necessary or appropriate in furtherance Number SR–NYSE–2016–48. This file number should be included on the prepared by the Exchange. The of the purposes of the Act. The Commission is publishing this notice to proposed rule change is designed to subject line if email is used. To help the Commission process and review your solicit comments on the proposed rule facilitate trading in Exchange-listed change from interested persons. securities on its Disaster Recovery comments more efficiently, please use Facility. As such, the Exchange believes only one method. The Commission will I. Self-Regulatory Organization’s that the proposed rule change would post all comments on the Commission’s Statement of the Terms of Substance of Internet Web site (http://www.sec.gov/ promote competition for the benefit of the Proposed Rule Change rules/sro.shtml). Copies of the market participants and investors The Exchange proposes to to amend submission, all subsequent generally because it provides the NYSE Arca Options Fee Schedule. amendments, all written statements transparency in Exchange rules of The proposed rule change is available with respect to the proposed rule which rules would govern trading in on the Exchange’s Web site at change that are filed with the www.nyse.com, at the principal office of Exchange-traded securities if they trade Commission, and all written the Exchange, and at the Commission’s on the Exchange’s Disaster Recovery communications relating to the Public Reference Room. Facility. proposed rule change between the C. Self-Regulatory Organization’s Commission and any person, other than II. Self-Regulatory Organization’s Statement on Comments on the those that may be withheld from the Statement of the Purpose of, and Proposed Rule Change Received From public in accordance with the Statutory Basis for, the Proposed Rule Members, Participants, or Others provisions of 5 U.S.C. 552, will be Change available for Web site viewing and In its filing with the Commission, the No written comments were solicited printing in the Commission’s Public self-regulatory organization included or received with respect to the proposed Reference Room, 100 F Street NE., statements concerning the purpose of, rule change. Washington, DC 20549, on official business days between the hours of 26 17 CFR 200.30–3(a)(12). 24 17 CFR 242.1001(a)(2)(v). 10:00 a.m. and 3:00 p.m. Copies of the 1 15 U.S.C. 78s(b)(1). 25 17 CFR 242.1002(b). filing also will be available for 2 17 CFR 240.19b–4.
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and basis for, the proposed rule change through increased liquidity and their competitive standing in the and discussed any comments it received enhanced price discovery. financial markets. In addition, the on the proposed rule change. The text proposed change to Tier C would be 2. Statutory Basis of those statements may be examined at available to all similarly situated OTPs the places specified in Item IV below. The Exchange believes that the and should therefore encourage The Exchange has prepared summaries, proposed rule change is consistent with competition without undue burden. set forth in sections A, B, and C below, Section 6(b) of the Act,4 in general, and The Exchange notes that it operates in of the most significant parts of such furthers the objectives of Sections a highly competitive market in which statements. 6(b)(4) and (5) of the Act,5 in particular, market participants can readily favor because it provides for the equitable competing venues. In such an A. Self-Regulatory Organization’s allocation of reasonable dues, fees, and environment, the Exchange must Statement of the Purpose of, and other charges among its members, continually review, and consider Statutory Basis for, the Proposed Rule issuers and other persons using its adjusting, its fees and credits to remain Change facilities and does not unfairly competitive with other exchanges. For 1. Purpose discriminate between customers, the reasons described above, the issuers, brokers or dealers. Exchange believes that the proposed The purpose of this filing is to amend The Exchange believes that the rule change reflects this competitive the Fee Schedule effective August 1, proposed modification to Tier C is environment 2016. Specifically, the Exchange reasonable, equitable, and not unfairly C. Self-Regulatory Organization’s proposes to modify the qualification for discriminatory because it would be Statement on Comments on the Tier C of Customer and Professional available to all OTPs that execute posted Proposed Rule Change Received From Customer Posting Credit Tiers in Non- electronic Customer (and Professional Members, Participants, or Others Penny Pilot Issues (the ‘‘Posting Credit Customer) orders on the Exchange on an Tiers’’), as described below. equal and non-discriminatory basis. The No written comments were solicited The Customer Posting Credit Tiers Exchange believes that modifying Tier C or received with respect to the proposed consists of a Base Tier and Tiers A, B to reduce the portion of posted orders in rule change. and C, which provide for specified non-Penny Pilot issues required to III. Date of Effectiveness of the credits if specified volume thresholds qualify for the Tier is equitable and not Proposed Rule Change and Timing for have been met.3 Currently, Tier C of the unfairly discriminatory because the Commission Action Posting Credit Tiers provides a $0.90 change would enable more OTPs to per contract credit to OTP Holders and qualify for the credit, which in turn, The foregoing rule change is effective OTP Firms (collectively, ‘‘OTPs’’) that upon filing pursuant to Section could reduce OTPs overall transaction 7 meet or exceed a qualification basis of costs on the Exchange. Moreover, the 19(b)(3)(A) of the Act and subparagraph (f)(2) of Rule 19b–4 8 at least 1.50% of Total Industry Exchange believes the proposed thereunder, because it establishes a due, Customer equity and ETF option ADV modifications would provide additional fee, or other charge imposed by the (‘‘TCADV’’) from Customer and incentives to OTPs to direct Customer Exchange. Professional Customer Posted Orders in (and Professional Customer) order flow all Issues, of which at least 0.40% of At any time within 60 days of the to the Exchange, which benefits all filing of such proposed rule change, the TCADV is from Customer and market participants through increased Professional Customer Posted Orders in Commission summarily may liquidity and enhanced price discovery. temporarily suspend such rule change if non-Penny Pilot Issues. For these reasons, the Exchange it appears to the Commission that such The Exchange is proposing to modify believes that the proposal is consistent action is necessary or appropriate in the the qualification for Tier C by with the Act. maintaining the requirement of at least public interest, for the protection of 1.50% of TCADV from Customer and B. Self-Regulatory Organization’s investors, or otherwise in furtherance of Professional Customer Posted Orders in Statement on Burden on Competition the purposes of the Act. If the all Issues, but reducing the portion of In accordance with Section 6(b)(8) of Commission takes such action, the TCADV from Customer and Professional the Act,6 the Exchange does not believe Commission shall institute proceedings under Section 19(b)(2)(B) 9 of the Act to Customer Posted Orders in non-Penny that the proposed rule change will determine whether the proposed rule Pilot Issues from 0.40% to 0.30%. The impose any burden on competition that change should be approved or Exchange believes that reducing the is not necessary or appropriate in disapproved. required portion of posted orders in furtherance of the purposes of the Act. non-Penny Pilot issues while Instead, the Exchange believes that the IV. Solicitation of Comments maintaining the overall volume proposed change, which would make Interested persons are invited to threshold to qualify for Tier C would Tier C more achievable, would continue submit written data, views, and make the Tier (and related credit) more to encourage competition, including by arguments concerning the foregoing, achievable given that the vast majority attracting additional liquidity to the including whether the proposed rule of options issues traded on the Exchange, which would continue to change is consistent with the Act. Exchange are in Penny Pilot Issues. The make the Exchange a more competitive Comments may be submitted by any of Exchange believes that the modification venue for, among other things, order the following methods: to make Tier C more achievable would execution and price discovery. The provide additional incentive to OTPs to Exchange does not believe that the Electronic Comments direct Customer (and Professional proposed change will impair the ability • Use the Commission’s Internet Customer) order flow to the Exchange, of any market participants or competing comment form (http://www.sec.gov/ which benefits all market participants order execution venues to maintain rules/sro.shtml); or
3 The Exchange notes that there is a posting credit 4 15 U.S.C. 78f(b). 7 15 U.S.C. 78s(b)(3)(A). of $0.75 associated with a Base Tier for which there 5 15 U.S.C. 78f(b)(4) and (5). 8 17 CFR 240.19b–4(f)(2). is no volume requirement. 6 15 U.S.C. 78f(b)(8). 9 15 U.S.C. 78s(b)(2)(B).
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• Send an email to rule-comments@ DEPARTMENT OF TRANSPORTATION prepared to compete for, obtain, and sec.gov. Please include File Number SR– manage DOT funded transportation- NYSEArca–2016–115 on the subject Office of the Secretary of related contracts and subcontracts at the line. Transportation federal, state and local levels. Throughout this notice, the term ‘‘small Paper Comments Notice of Funding Availability for the business’’ will refer to: 8(a), small Small Business Transportation • Send paper comments in triplicate disadvantaged businesses (SDB), Resource Center Program disadvantaged business enterprises to Brent J. Fields, Secretary, Securities (DBE), women owned small businesses and Exchange Commission, 100 F Street AGENCY: Office of Small and (WOSB), HubZone, service disabled NE., Washington, DC 20549–1090. Disadvantaged Business Utilization (OSDBU), Office of the Secretary of veteran owned businesses (SDVOB), and All submissions should refer to File Transportation (OST), Department of veteran owned small businesses Number SR–NYSEArca–2016–115. This Transportation (DOT). (VOSB). Throughout this notice, file number should be included on the ACTION: Notice of funding availability ‘‘transportation-related’’ is defined as subject line if email is used. To help the for the Great Lakes Region SBTRC. the maintenance, rehabilitation, Commission process and review your restructuring, improvement, or SUMMARY: comments more efficiently, please use The Department of revitalization of any of the nation’s Transportation (DOT), Office of the only one method. The Commission will modes of transportation. Secretary (OST), Office of Small and post all comments on the Commission’s Funding Opportunity Number: Disadvantaged Business Utilization Internet Web site (http://www.sec.gov/ USDOT–OST–OSDBU/ (OSDBU) announces the opportunity for SBTRCGREATLAKES–2016–1. rules/sro.shtml). Copies of the business centered community-based Catalog of Federal Domestic submission, all subsequent organizations, transportation-related Assistance (CFDA) Number: 20.910 amendments, all written statements trade associations, colleges and Assistance to Small and Disadvantaged with respect to the proposed rule universities, community colleges, or Businesses. change that are filed with the chambers of commerce, registered with Commission, and all written the Internal Revenue Service as 501 C(6) Type of Award: Cooperative communications relating to the or 501 C(3) tax-exempt organizations, to Agreement Grant. proposed rule change between the compete for participation in OSDBU’s Award Ceiling: $232,000. Commission and any person, other than Small Business Transportation Resource Award Floor: $224,000. those that may be withheld from the Center (SBTRC) program in the Great Program Authority: DOT is authorized public in accordance with the Lakes Region (Illinois, Indiana, under 49 U.S.C. 332 (b) (4), (5) & (7) to provisions of 5 U.S.C. 552, will be Michigan, Ohio, and Wisconsin). design and carry out programs to assist available for Web site viewing and DATES: Complete Proposals must be small disadvantaged businesses in printing in the Commission’s Public received on or September 16, 2016, 6:00 getting transportation-related contracts Reference Room, 100 F Street NE., p.m. Eastern Standard Time (EST). and subcontracts; develop support Washington, DC 20549 on official Proposals received after the deadline mechanisms, including management business days between the hours of will be considered non-responsive and and technical services, that will enable 10:00 a.m. and 3:00 p.m. Copies of such will not be reviewed. small disadvantaged businesses to take filing also will be available for ADDRESSES: Applications must be advantage of those business inspection and copying at the principal electronically submitted through opportunities; and to make office of the Exchange. All comments Grants.gov. Only applicants who arrangements to carry out the above purposes. received will be posted without change; comply with all submission the Commission does not edit personal requirements described in this notice Table of Contents and electronically submit valid identifying information from A. Program Description and Goals submissions. You should submit only applications through Grants.gov will be eligible for award. B. Federal Award Information information that you wish to make C. Eligibility Information available publicly. All submissions FOR FURTHER INFORMATION CONTACT: For 1. Eligible Applicant should refer to File Number SR– further information concerning this 2. Program/Recipient Requirements notice, contact Ms. Steronica Mattocks, NYSEArca–2016–115, and should be 3. Office of Small and Disadvantaged Program Analyst, U.S. Department of Business Utilization (OSDBU) submitted on or before September 1, Transportation, Office of Small and Responsibilities 2016. Disadvantaged Business Utilization, D. Application and Submission Information For the Commission, by the Division of 1200 New Jersey Avenue SE., E. Application Review Trading and Markets, pursuant to delegated Washington, DC 20590. Telephone: 1. Selection Criteria authority.10 a. Approach and Strategy (202) 366–0658. Email: [email protected]. b. Linkages Jill M. Peterson, SUPPLEMENTARY INFORMATION: OSDBU c. Organizational Capability Assistant Secretary. will enter into Cooperative Agreements d. Staff Capabilities and Experience [FR Doc. 2016–19055 Filed 8–10–16; 8:45 am] with these organizations to provide e. Cost Proposal (Budget) f. Scoring Application BILLING CODE 8011–01–P outreach to the small business community in their designated region g. Conflicts of Interest and provide financial and technical 2. Review and Selection Process assistance, business training programs, F. Federal Award Administration a. Administrative and National Policy business assessment, management Requirements training, counseling, marketing and b. Reporting outreach, and the dissemination of G. Federal Awarding Agency Contacts information, to encourage and assist H. Protection of Confidential Business 10 17 CFR 200.30–3(a)(12). small businesses to become better Information
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A. Program Description and Goals B. Federal Award Information DBEs, Certified Small Businesses, and The national SBTRC program utilizes The DOT established OSDBU in US DOT transportation dollars in each Cooperative Agreements with chambers accordance with Public Law 95–507, an region. of commerce, trade associations, amendment to the Small Business Act It is OSDBU’s intent to maximize the educational institutions and business- and the Small Business Investment Act benefits received by the small business centered community based of 1958. The mission of OSDBU at DOT transportation community through the organizations to establish SBTRCs to is to ensure that the small and SBTRC. Funding will reimburse an on- provide business training, technical disadvantaged business policies and site Project Director for 100% of salary assistance and information to DOT goals of the Secretary of Transportation plus fringe benefits, an on-site Executive grantees and recipients, prime are developed and implemented in a Director up to 20% of salary plus fringe contractors and subcontractors. In order fair, efficient and effective manner to benefits, up to 100% of a Project to be effective and serve their target serve small and disadvantaged Coordinator salary plus fringe benefits, audience, the SBTRCs must be active in businesses throughout the country. The the cost of designated SBTRC space, the local transportation community in OSDBU also administers the provisions other direct costs, and all other general order to identify and communicate of Title 49, Section 332, the Minority and administrative expenses. Selected opportunities and provide the required Resource Center (MRC) which includes SBTRC partners will be expected to technical assistance. SBTRCs must the duties of advocacy, outreach and provide in-kind administrative support. already have, or demonstrate the ability financial services on behalf of small and Submitted proposals must contain an to, establish working relationships with disadvantaged business and those alternative funding source with which the state and local transportation certified under 49 CFR parts 23 and 26 the SBTRC will fund administrative agencies and technical assistance as Disadvantaged Business Enterprises support costs. Preference will be given agencies (i.e. The U.S. Department of (SBE) and the development of programs to proposals containing in-kind Commerce’s Minority Business to encourage, stimulate, promote and contributions for the Project Director, Development Centers (MBDCs), Small assist small businesses to become better the Executive Director, the Project Business Development Centers (SBDCs), prepared to compete for, obtain and Coordinator, cost of designated SBTRC and Procurement Technical Assistance manage transportation-related contracts space, other direct costs, and all other Centers (PTACs), SCORE and State DOT and subcontracts. general and administrative expenses. highway supportive services contractors The Regional Assistance Division of The SBTRC will furnish all labor, in their region. Utilizing these OSDBU, through the SBTRC program, facilities and equipment to perform the relationships and their own expertise, allows OSDBU to partner with local services described in this the SBTRCs are involved in activities organizations to offer a comprehensive announcement. such as information dissemination, delivery system of business training, C. Eligibility Information small business counseling, and technical assistance and dissemination technical assistance with small of information, targeted towards small 1. Eligible Applicant businesses currently doing business business transportation enterprises in To be eligible, an organization must with public and private entities in the their regions. The SBTRCs are be an established, nonprofit, transportation industry. established and funded through community-based organization, Effective outreach is critical to the Cooperative Agreements between transportation-related trade association, success of the SBTRC program. In order eligible applicants and OSDBU. The chamber of commerce, college or for their outreach efforts to be effective, SBTRCs function as regional offices of university, community college, and any SBTRCs must be familiar with DOT’s OSDBU and fully execute the mission of other qualifying transportation-related Operating Administrations, its funding the OSDBU nationally. non-profit organization which has the sources, and how funding is awarded to OSDBU enters into Cooperative documented experience and capacity DOT grantees, recipients, contractors, Agreements with recipients to establish necessary to successfully operate and subcontractors, and its financial and fund a regional SBTRC. Under the administer a coordinated delivery assistance programs. SBTRCs must Cooperative Agreement OSDBU will be system that provides access for small provide outreach to the regional small ‘‘substantially involved’’ with the businesses to prepare and compete for business transportation community to overall operations of the SBTRC. This transportation-related contracts. disseminate information and distribute involvement includes directing SBTRC In addition, to be eligible, the DOT-published marketing materials, staff to travel and represent OSDBU on applicant organization must: such as Short Term Lending Program panels and events. OSDBU will make (a) Be an established 501 C (3) or 501 (STLP) Information, Bonding Education one award under this announcement. C (6) tax-exempt organization and Program (BEP) information, SBTRC Award ceiling for this announcement is provide documentation as verification. brochures and literature, DOT $232,000. The recipient will begin No application will be accepted without Procurement Forecasts; Contracting performing on the award on October 1, proof of tax-exempt status; with DOT booklets, Women and Girls in 2016 and the period of performance (b) Have at least one year of Transportation Initiative (WITI) (POP) will be October 1, 2016 to documented and continuous experience information, and any other materials or September 30, 2017. This is a 1 year prior to the date of application in resources that DOT or OSDBU may grant with an option to renew for 2 providing advocacy, outreach, and develop for this purpose. To maximize additional years at the discretion of U.S. technical assistance to small businesses outreach, the SBTRC may be called DOT. within the region in which proposed upon to participate in regional and Cooperative agreement awards will be services will be provided. Prior national conferences and seminars. distributed to the region(s) as follows: performance providing services to the Quantities of DOT publications for on- transportation community is preferable, hand inventory and dissemination at Great Lakes Ceiling: $232,000 per year. but not required; and conferences and seminars will be Region. Floor: $224,000 per year. (c) Have an office physically located available upon request from the OSDBU Cooperative agreement awards by within the proposed city in the office. region are based upon an analysis of designated headquarters state in the
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region for which they are submitting the any time taken to do email contractors as effective subcontractor proposal that is readily accessible to the correspondence. firms. public. Identify regional, state and local (d) Planning Committee conferences where a significant number 2. Program/Recipient Requirements Establish a Regional Planning of small businesses, with transportation (a) Assessments, Business Analyses Committee consisting of at least 10 related capabilities, are expected to be Conduct an assessment of small members that includes representatives in attendance. Maintain and submit a businesses in the SBTRC region to from the regional community and list of those events to the regional determine their training and technical federal, state, and local agencies. The Assistance Division for review and assistance needs, and use information highway, airport, and transit authorities posting on the OSDBU Web site on a that is available at no cost to structure for the SBTRCs headquarters state must regular basis. Clearly identify the events programs and services that will enable have representation on the planning designated for SBTRC participation and small businesses to become better committee. The committee shall be include recommendations for OSDBU prepared to compete for and receive established no later than 60 days after participation. This information can be transportation-related contract awards. the execution of the Cooperative submitted as part of the SBTRC report. Agreement between the OSDBU and the Conduct outreach and disseminate (b) General Management & Technical selected SBTRC. information to small businesses at Training and Assistance Provide a forum for the federal, state, regional transportation-related Utilize OSDBU’s Intake Form to and local agencies to disseminate conferences, seminars, and workshops. document each small business assisted information about upcoming DOT In the event that the SBTRC is requested by the SBTRC and type of service(s) procurements and SBTRC activities. to participate in an event, the OSDBU provided. A complete list of businesses Hold either monthly or quarterly will provide DOT materials, the OSDBU that have filled out the form shall be meetings at a time and place agreed banner and other information that is submitted as part of the SBTRC report, upon by SBTRC and planning deemed necessary for the event. submitted via email to the Regional committee members (conference calls Submit a conference summary report Assistance Division on a regular basis and/or video conferences are within the ‘‘Events’’ section of the (using the SBTRC report). This report acceptable). SBTRC Report. The conference will detail SBTRC activities and Use the initial session hosted by the summary report should summarize the performance results. The data provided SBTRC to explain the mission of the activity, contacts made, outreach must be supported by the narrative (if committee and identify roles of staff and results, and recommendations for asked). the members of the group. continued or discontinued participation Ensure that an array of information is Responsibility for the agenda and in future similar events sponsored by made available for distribution to the direction of the Planning Committee that organization. small business transportation should be handled by the SBTRC Project Upon request by OSDBU, coordinate community that is designed to inform Director or his/her designee. efforts with DOT’s grantees and and educate the community on DOT/ (e) Outreach Services/Conference recipients at the state and/or local levels OSDBU services and opportunities. Participation to sponsor or cosponsor an OSDBU Coordinate efforts with OSDBU in order transportation related conference in the to maintain an on-hand inventory of Utilize the services of the System for region (commonly referred to as ‘‘Small DOT/OSDBU informational materials Award Management (SAM) and other Business Summits’’). for general dissemination and for sources to construct a database of Participate in the SBTRC Monthly distribution at transportation-related regional small businesses that currently teleconference call, hosted by the conferences and other events. are or may in the future participate in OSDBU Regional Assistance Division. DOT direct and DOT funded (c) Business Counseling transportation related contracts, and (f) Short Term Lending Program (STLP) Collaborate with agencies, such as make this database available to OSDBU Work with STLP participating banks State, Regional, and Local upon request. and if not available, other institutions to Transportation Government Agencies, Utilize the database of regional deliver a minimum of five (5) seminars/ SBA, U.S. Department of Commerce’s transportation-related small businesses workshops per year on the STLP, and/ Minority Business Development Centers to match opportunities identified or other financial assistance programs, (MBDCs), Service Corps of Retired through the planning committee forum, to the transportation-related small Executives (SCORE), Procurement FedBiz Opps (a web-based system for business community. Seminars/ Technical Assistance Centers (PTACs), posting solicitations and other Federal workshops must cover the entire STLP/ and Small Business Development procurement-related documents on the loan process, form completion of STLP/ Centers (SBDCs), to offer a broad range Internet), and other sources to eligible loan applications and preparation of the of counseling services to transportation- small businesses and inform the small loan package. related small business enterprises. business community about those Provide direct support, technical Create a technical assistance plan that opportunities. support, and advocacy services to will provide each counseled participant Develop a ‘‘targeted’’ database of firms potential STLP applicants to increase with the knowledge and skills necessary (100–150) that have the capacity and the probability of STLP loan approval to improve the management of their capabilities, and are ready, willing and and generate a minimum of four (4) own small business to expand their able to participate in DOT contracts and completed STLP applications per year. transportation-related contracts and subcontracts immediately. This control Provide direct support, technical subcontracts portfolio. group will receive ample resources from support, and advocacy services to Small Provide a minimum of 20 hours of the SBTRC, i.e., access to working and Disadvantaged Businesses individual or group counseling sessions capital, bonding assistance, business interested in obtaining a loan from to small businesses per month. This counseling, management assistance and another type of Government Lending counseling includes in-person meetings direct referrals to DOT agencies at the Program. Government Lending Programs or over the phone, and does not include state and local levels, and to prime include Federal, State, and Local level
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programs. The SBTRC will be required related careers. The committee will have information pertinent to the application to generate a minimum of three (3) 5 members (including the SBTRC must be included in a single completed Government Lending Project Director) with a 1 year submission. Proposal packages must be Program applications per year. membership. Meetings will be submitted electronically to Grants.gov. conducted on a quarterly basis at an (c) Each applicant must be registered (g) Bonding Education Program (BEP) agreeable place and time. in System for Award Management Work with OSDBU, bonding industry (SAM) and provide their unique Entity 3. Office of Small and Disadvantaged partners, local small business Identifier with the proposal. Business Utilization (OSDBU) transportation stakeholders, and local (d) Proposals must be received in Requirements bond producers/agents in your region to Grants.gov no later than September 16, deliver a minimum of two (2) complete (a) Provide consultation and technical 2016, 6:00 p.m. Eastern Standard Time Bonding Education Programs and secure assistance in planning, implementing, (EST). 3% of the total DBE contract value for and evaluating activities under this each transportation project. The BEP announcement. E. Application Review consists of the following components; (b) Provide orientation and training to 1. Selection Criteria (1) The stakeholder’s meeting; (2) the the applicant organization. educational workshops component; (3) OSDBU will award the cooperative (c) Monitor SBTRC activities, agreement on a best value basis, using the bond readiness component; and (4) cooperative agreement compliance, and follow-on assistance to BEP participants the following criteria to rate and rank overall SBTRC performance. applications: to provide technical and procurement (d) Assist SBTRC to develop or assistance based on the prescriptive Applications will be evaluated using strengthen its relationships with federal, a point system (maximum number of plan determined by the BEP. For each state, and local transportation BEP event, work with the local bond points = 100); authorities, other technical assistance Æ producers/agents in your region and the organizations, and DOT grantees. Approach and strategy (25 points) disadvantaged business participants to Æ Linkages (25 points) (e) Facilitate the exchange and Æ deliver a minimum of ten (10) transfer of successful program activities Organizational Capability (25 points) Æ Staff Capabilities and Experience (15 disadvantaged business participants in and information among all SBTRC points) the BEP with either access to bonding or regions. Æ Cost Proposal (10 points) an increase in the bonding capacity. The (f) Provide the SBTRC with DOT/ programs will be funded separately and OSDBU materials and other relevant (a) Approach and Strategy (25 points) in addition to the amount listed in 1.3 transportation related information for of the solicitation. The applicant must describe their dissemination. strategy to achieve the overall mission (h) Women and Girls in Transportation (g) Maintain effective communication of the SBTRC as described in this Initiative (WITI) with the SBTRC and inform them of solicitation and service the small Pursuant to Executive Order 13506, transportation news and contracting business community in their entire and 49 U.S.C. 332(b)(4) & (7), the opportunities to share with small geographic regional area. The applicant SBTRC shall administer the WITI in businesses in their region. must also describe how the specific their geographical region. The SBTRC (h) Provide all required forms to be activities outlined in Section C will be shall implement the DOT WITI program used by the SBTRC for reporting implemented and executed in the as defined by the DOT WITI Policy. The purposes under the program. organization’s regional area. OSDBU WITI program is designed to identify, (i) Perform an annual performance will consider the extent to which the educate, attract, and retain women and evaluation of the SBTRC. Satisfactory proposed objectives are specific, girls from a variety of disciplines in the performance is a condition of continued measurable, time-specific, and transportation industry. The SBTRC participation of the organization as an consistent with OSDBU goals and the shall also be responsible for outreach SBTRC and execution of all option applicant organization’s overall mission. activities in the implementation of this years. OSDBU will give priority consideration program and advertising the WITI D. Application and Submission to applicants that demonstrate program to all colleges and universities Information innovation and creativity in their and transportation enemies in their approach to assist small businesses to region. The WITI program shall be (a) Format for Proposals become successful transportation developed in conjunction with the skill Each proposal must be submitted to contractors and increase their ability to needs of the US DOT, state and local Grants.gov in the format set forth in the access DOT contracting opportunities transportation agencies and appropriate application form attached as Appendix and financial assistance programs. private sector transportation-related A to this announcement. Applicants must also submit the participants including, S/WOBs/DBEs, estimated direct costs, other than labor, (b) Address; Number of Copies; and women organizations involved in to execute their proposed strategy. Deadlines for Submission transportation. Emphasis shall be placed OSDBU will consider the quality of the on establishing partnerships with Any eligible organization, as defined applicant’s plan for conducting program transportation-related businesses. The in Section C of this announcement, will activities and the likelihood that the SBTRC will be required to host 1 WITI submit only one proposal per region for proposed methods will be successful in event and attend at least 5 events where consideration by OSDBU. Applications achieving proposed objectives at the WITI is presented and marketed. must be double spaced, and printed in proposed cost. Each region will establish a Women in a font size not smaller than 12 points. Transportation Advisory Committee. Applications will not exceed 35 single- (b) Linkages (25 points) The committee will provide a forum to sided pages, not including any The applicant must describe their identify and provide workable solutions requested attachments. All pages should established relationships within their to barriers that women-owned be numbered at the top of each page. All geographic region and demonstrate their businesses encounter in transportation- documentation, attachments, or other ability to coordinate and establish
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effective networks with DOT grant be the responsibility of the successful by OSDBU cannot exceed the ceiling recipients and local/regional technical candidate to not only provide the outlined in Section B. Applicants are assistance agencies to maximize services outlined herein to small encouraged to provide in-kind costs and resources. OSDBU will consider business in the transportation industry, other innovative cost approaches. innovative aspects of the applicant’s but to also successfully manage and (f) Scoring Applications approach and strategy to build upon maintain their internal financial, their existing relationships and establish payment, and invoicing process with A review panel will score each networks with existing resources in their financial management offices. application based upon the evaluation their geographical area. The applicant OSDBU will place an emphasis on criteria listed above. Points will be should describe their strategy to obtain capabilities of the applicant’s financial given for each evaluation criteria and collaboration on SBTRC from DOT management staff. Additionally, a site category, not to exceed the maximum grantees and recipients, transportation visit will be required prior to award for number of points allowed for each prime contractors and subcontractors, those candidates that are being strongly category. Proposals which are deemed the SBA, U.S. Department of considered. A member of the OSDBU non-responsive, do not meet the Commerce’s Minority Business team will contact those candidates to established criteria, or incomplete at the Development Centers (MBDCs), Service schedule the site visits prior to the time of submission will be disqualified. Corps of Retired Executives (SCORE), award of the agreement. OSDBU will perform a responsibility State DOTs, and State Highway determination of the prospective (d) Staff Capability and Experience (15 supportive services contractors. In awardee in the region, which will Points) rating this factor, OSDBU will consider include a site visit, before awarding the the extent to which the applicant The applicant organization must cooperative agreement. demonstrates ability to be provide a list of proposed personnel for multidimensional. The applicant must the project, with salaries, fringe benefit (g) Conflicts of Interest demonstrate that they have the ability to burden factors, education levels and Applicants must submit signed access a broad range of supportive previous experience clearly delineated. statements by key personnel and all services to effectively serve a broad The applicant’s project team must be organization principals indicating that range of transportation-related small well-qualified, knowledgeable, and able they, or members of their immediate businesses within their respective to effectively serve the diverse and funded transportation project, nor any geographical region. Emphasis will also broad range of small businesses in their relationships with local or state be placed on the extent to which the geographical region. The Executive transportation agencies that may have applicant identifies a clear outreach Director and the Project Director shall the appearance of a conflict of interest. strategy related to the identified needs be deemed key personnel. Detailed 2. Review and Selection Process that can be successfully carried out resumes must be submitted for all within the period of this agreement and proposed key personnel and outside A team of people will evaluate the a plan for involving the Planning consultants and subcontractors. proposals. Those proposals meeting the Committee in the execution of that Proposed key personnel must have mandatory criteria will be assessed strategy. detailed demonstrated experience based on the above mentioned criteria. providing services similar in scope and The proposals demonstrating the (c) Organizational Capability (25 points) nature to the proposed effort. The organization’s capacity to fully execute The applicant must demonstrate that proposed Project Director will serve as the requirements of this grant will be they have the organizational capability the responsible individual for the considered. The proposal receiving the to meet the program requirements set program. 100% of the Project Director’s highest overall score will be awarded. forth in Section C. The applicant time must be dedicated to the SBTRC. organization must have sufficient Both the Executive and Project Directors F. Federal Award Administration resources and past performance must be located on-site. In this element, Following the evaluation outlined in experience to successfully provide OSDBU will consider the extent to Section E, the OSDBU will announce outreach to transportation-related small which the applicant’s proposed Staffing the awarded applicant with a written businesses in their geographical area Plan; (a) clearly meets the education and Notice of Funding Award. The NOFA and carry out the mission of the SBTRC. experience requirements to accomplish will also include the cooperative In rating this factor, OSDBU will the objectives of the cooperative agreement for signature. consider the extent to which the agreement; (b) delineates staff (a) Administrative and National Policy applicant’s organization has recent, responsibilities and accountability for Requirements relevant and successful experience in all work required and; (c) presents a advocating for and addressing the needs clear and feasible ability to execute the All awards will be administered of small businesses. Applicants will be applicant’s proposed approach and pursuant to the Uniform Administrative given points for demonstrated past strategy. Cost Principles and Audit Requirements transportation-related performance. The for Federal Awards found in 2 CFR part applicant must also describe technical (e) Cost Proposal (10 Points) 200, as adopted by DOT as 2 CFR and administrative resources it plans to Applicants must submit the total part1201. use in achieving proposed objectives. In proposed cost of establishing and their description, the applicant must administering the SBTRC in the (b) Reporting describe their facilities, computer and applicant’s geographical region for a 12 Performance Reporting—The technical facilities, ability to tap into month period, inclusive of costs funded recipient of this cooperative agreement volunteer staff time, and a plan for through alternative matching resources. must collect information and report on sufficient matching alternative financial The applicant’s budget must be the cooperative agreement performance resources to fund the general and adequate to support the proposed with respect to the relevant deliverables administrative costs of the SBTRC. The strategy and costs must be reasonable in that are expected to be achieved through applicant must also describe their relation to project objectives. The the cooperative agreement. Performance administrative and financial staff. It will portion of the submitted budget funded indicators will include formal goals or
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targets, but will include baseline DEPARTMENT OF TRANSPORTATION prepared to compete for, obtain, and measures for an agreed-upon timeline, manage DOT funded transportation- and will be used to evaluate and Office of the Secretary of related contracts and subcontracts at the monitor the results that the cooperative Transportation federal, state and local levels. agreement funds achieve to ensure that Throughout this notice, the term ‘‘small funds achieve the intended long-term Notice of Funding Availability for the business’’ will refer to: 8(a), small outcomes of the cooperative agreement Small Business Transportation disadvantaged businesses (SDB), program. Resource Center Program disadvantaged business enterprises Progress Reporting—The recipient for AGENCY: Office of Small and (DBE), women owned small businesses this cooperative agreement funding Disadvantaged Business Utilization (WOSB), HubZone, service disabled must submit quarterly progress reports (OSDBU), Office of the Secretary of veteran owned businesses (SDVOB), and and annual Federal Financial Report Transportation (OST), Department of veteran owned small businesses (SF–425) on the financial condition of Transportation (DOT). (VOSB). Throughout this notice, the cooperative agreement and its ACTION: Notice of funding availability ‘‘transportation-related’’ is defined as progress, as well as an Annual Budget for the Gulf Region SBTRC. the maintenance, rehabilitation, Review and Implementation Plan to restructuring, improvement, or monitor the use of Federal funds and SUMMARY: The Department of revitalization of any of the nation’s ensure accountability and financial Transportation (DOT), Office of the modes of transportation. transparency in the program. Secretary (OST), Office of Small and Funding Opportunity Number: Disadvantaged Business Utilization G. Federal Awarding Agency Contracts USDOT–OST–OSDBU/SBTRCGULF– (OSDBU) announces the opportunity for 2016–1. business centered community-based For further information this notice Catalog of Federal Domestic organizations, transportation-related please contact the OSDBU program staff Assistance (CFDA) Number: 20.910 trade associations, colleges and via email at [email protected], or call Ms. Assistance to Small and Disadvantaged universities, community colleges, or Steronica Mattocks at 202–366–0658. To Businesses. ensure applicants receive accurate chambers of commerce, registered with the Internal Revenue Service as 501 C(6) Type of Award: Cooperative information about eligibility or the Agreement Grant. program, the applicant is encouraged to or 501 C(3) tax-exempt organizations, to Award Ceiling: $190,000. contact DOT directly, rather than compete for participation in OSDBU’s through intermediaries or third parties, Small Business Transportation Resource Award Floor: $170,000. with questions. Center (SBTRC) program in the Gulf Program Authority: DOT is authorized Region (Louisiana, New Mexico, under 49 U.S.C. 332 (b) (4), (5) & (7) to H. Other Information Oklahoma, and Texas). design and carry out programs to assist Protection of Confidential Business DATES: Complete Proposals must be small disadvantaged businesses in Information received on or September 16, 2016, 6:00 getting transportation-related contracts p.m. Eastern Standard Time (EST). and subcontracts; develop support All information submitted as part of Proposals received after the deadline mechanisms, including management or in support of any application shall will be considered non-responsive and and technical services, that will enable use publicly available data or data that will not be reviewed. small disadvantaged businesses to take can be made public and methodologies ADDRESSES: Applications must be advantage of those business that are accepted by industry practice electronically submitted through opportunities; and to make and standards, to the extent possible. If Grants.gov. Only applicants who arrangements to carry out the above the application includes information comply with all submission purposes. you consider to be a trade secret or requirements described in this notice confidential commercial or financial Table of Contents and electronically submit valid information, the applicant should do the applications through Grants.gov will be A. Program Description and Goals following: (1) Note on the front cover eligible for award B. Federal Award Information that the submission ‘‘Contains C. Eligibility Information FOR FURTHER INFORMATION CONTACT: Confidential Business Information For 1. Eligible Applicant (CBI)’’; (2) mark each affected page further information concerning this 2. Program/Recipient Requirements ‘‘CBI’’; and (3) highlight or otherwise notice, contact Ms. Steronica Mattocks, 3. Office of Small and Disadvantaged denote the CBI portions. DOT protects U.S. Department of Transportation, Business Utilization (OSDBU) Responsibilities such information from disclosure to the Office of Small and Disadvantaged Business Utilization, 1200 New Jersey D. Application and Submission Information extent allowed under applicable law. In E. Application Review the event DOT received a Freedom of Avenue SE., Washington, DC, 20590. Telephone: (202) 366–0658. Email: 1. Selection Criteria Information Act (FOIA) request for the a. Approach and Strategy [email protected]. information, DOT will follow the b. Linkages procedures described in its FOIA SUPPLEMENTARY INFORMATION: OSDBU c. Organizational Capability regulation as 49 CFR 7.17. Only will enter into Cooperative Agreements d. Staff Capabilities and Experience information that is ultimately with these organizations to provide e. Cost Proposal (Budget) determined to be confidential under that outreach to the small business f. Scoring Application community in their designated region g. Conflicts of Interest procedure will be exempt from 2. Review and Selection Process disclosure under FOIA. and provide financial and technical assistance, business training programs, F. Federal Award Administration a. Administrative and National Policy Issued on: July 25, 2016. business assessment, management John G. Ralston, Requirements training, counseling, marketing and b. Reporting Acting Director. outreach, and the dissemination of G. Federal Awarding Agency Contacts [FR Doc. 2016–18327 Filed 8–10–16; 8:45 am] information, to encourage and assist H. Protection of Confidential Business BILLING CODE 4910–9X–P small businesses to become better Information
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A. Program Description and Goals B. Federal Award Information Cooperative agreement awards by The national SBTRC program utilizes region are based upon an analysis of The DOT established OSDBU in DBEs, Certified Small Businesses, and Cooperative Agreements with chambers accordance with Public Law 95–507, an of commerce, trade associations, US DOT transportation dollars in each amendment to the Small Business Act region. educational institutions and business- and the Small Business Investment Act centered community based It is OSDBU’s intent to maximize the of 1958. The mission of OSDBU at DOT benefits received by the small business organizations to establish SBTRCs to is to ensure that the small and provide business training, technical transportation community through the disadvantaged business policies and SBTRC. Funding will reimburse an on- assistance and information to DOT goals of the Secretary of Transportation grantees and recipients, prime site Project Director for 100% of salary are developed and implemented in a plus fringe benefits, an on-site Executive contractors and subcontractors. In order fair, efficient and effective manner to to be effective and serve their target Director up to 20% of salary plus fringe serve small and disadvantaged benefits, up to 100% of a Project audience, the SBTRCs must be active in businesses throughout the country. The the local transportation community in Coordinator salary plus fringe benefits, OSDBU also administers the provisions the cost of designated SBTRC space, order to identify and communicate of Title 49, Section, 332, the Minority opportunities and provide the required other direct costs, and all other general Resource Center (MRC) which includes and administrative expenses. Selected technical assistance. SBTRCs must the duties of advocacy, outreach and already have, or demonstrate the ability SBTRC partners will be expected to financial services on behalf of small and provide in-kind administrative support. to, establish working relationships with disadvantaged business and those the state and local transportation Submitted proposals must contain an certified under 49 CFR parts 23 and 26 alternative funding source with which agencies and technical assistance as Disadvantaged Business Enterprises agencies (i.e. The U.S. Department of the SBTRC will fund administrative (SBE) and the development of programs support costs. Preference will be given Commerce’s Minority Business to encourage, stimulate, promote and Development Centers (MBDCs), Small to proposals containing in-kind assist small businesses to become better contributions for the Project Director, Business Development Centers (SBDCs), prepared to compete for, obtain and and Procurement Technical Assistance the Executive Director, the Project manage transportation-related contracts Coordinator, cost of designated SBTRC Centers (PTACs), SCORE and State DOT and subcontracts. highway supportive services contractors space, other direct costs, and all other in their region. Utilizing these The Regional Assistance Division of general and administrative expenses. relationships and their own expertise, OSDBU, through the SBTRC program, The SBTRC will furnish all labor, the SBTRCs are involved in activities allows OSDBU to partner with local facilities and equipment to perform the such as information dissemination, organizations to offer a comprehensive services described in this small business counseling, and delivery system of business training, announcement. technical assistance and dissemination technical assistance with small C. Eligibility Information businesses currently doing business of information, targeted towards small with public and private entities in the business transportation enterprises in 1. Eligible Applicant their regions. The SBTRCs are transportation industry. To be eligible, an organization must Effective outreach is critical to the established and funded through be an established, nonprofit, success of the SBTRC program. In order Cooperative Agreements between community-based organization, for their outreach efforts to be effective, eligible applicants and OSDBU. The transportation-related trade association, SBTRCs must be familiar with DOT’s SBTRCs function as regional offices of chamber of commerce, college or Operating Administrations, its funding OSDBU and fully execute the mission of university, community college, and any sources, and how funding is awarded to the OSDBU nationally. other qualifying transportation-related DOT grantees, recipients, contractors, OSDBU enters into Cooperative non-profit organization which has the subcontractors, and its financial Agreements with recipients to establish documented experience and capacity assistance programs. SBTRCs must and fund a regional SBTRC. Under the necessary to successfully operate and provide outreach to the regional small Cooperative Agreement OSDBU will be administer a coordinated delivery business transportation community to ‘‘substantially involved’’ with the system that provides access for small disseminate information and distribute overall operations of the SBTRC. This businesses to prepare and compete for DOT-published marketing materials, involvement includes directing SBTRC transportation-related contracts. such as Short Term Lending Program staff to travel and represent OSDBU on In addition, to be eligible, the (STLP) Information, Bonding Education panels and events. OSDBU will make applicant organization must: Program (BEP) information, SBTRC one award under this announcement. brochures and literature, DOT Award ceiling for this announcement is (a) Be an established 501 C (3) or 501 Procurement Forecasts; Contracting $190,000. The recipient will begin C (6) tax-exempt organization and with DOT booklets, Women and Girls in performing on the award on October 1, provide documentation as verification. Transportation Initiative (WITI) 2016 and the period of performance No application will be accepted without information, and any other materials or (POP) will be October 1, 2016 to proof of tax-exempt status; resources that DOT or OSDBU may September 30, 2017. This is a 1 year (b) Have at least one year of develop for this purpose. To maximize grant with an option to renew for 2 documented and continuous experience outreach, the SBTRC may be called additional years at the discretion of U.S. prior to the date of application in upon to participate in regional and DOT. providing advocacy, outreach, and national conferences and seminars. technical assistance to small businesses Cooperative agreement awards will be Quantities of DOT publications for on- within the region in which proposed distributed to the region(s) as follows: hand inventory and dissemination at services will be provided. Prior conferences and seminars will be performance providing services to the Gulf Region .. Ceiling: $190,000 per year. available upon request from the OSDBU Floor: $170,000 per year. transportation community is preferable, office. but not required; and
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(c) Have an office physically located Provide a minimum of 20 hours of capital, bonding assistance, business within the proposed city in the individual or group counseling sessions counseling, management assistance and designated headquarters state in the to small businesses per month. This direct referrals to DOT agencies at the region for which they are submitting the counseling includes in-person meetings state and local levels, and to prime proposal that is readily accessible to the or over the phone, and does not include contractors as effective subcontractor public. any time taken to do email firms. correspondence. Identify regional, state and local 2. Program Requirements/Recipient conferences where a significant number Responsibilities (d) Planning Committee of small businesses, with transportation (a) Assessments, Business Analyses Establish a Regional Planning related capabilities, are expected to be Committee consisting of at least 10 in attendance. Maintain and submit a Conduct an assessment of small members that includes representatives list of those events to the regional businesses in the SBTRC region to from the regional community and Assistance Division for review and determine their training and technical federal, state, and local agencies. The posting on the OSDBU Web site on a assistance needs, and use information highway, airport, and transit authorities regular basis. Clearly identify the events that is available at no cost to structure for the SBTRCs headquarters state must designated for SBTRC participation and programs and services that will enable have representation on the planning include recommendations for OSDBU small businesses to become better committee. The committee shall be participation. This information can be prepared to compete for and receive established no later than 60 days after submitted as part of the SBTRC report. transportation-related contract awards. the execution of the Cooperative Conduct outreach and disseminate (b) General Management & Technical Agreement between the OSDBU and the information to small businesses at Training and Assistance selected SBTRC. regional transportation-related Provide a forum for the federal, state, conferences, seminars, and workshops. Utilize OSDBU’s Intake Form to and local agencies to disseminate In the event that the SBTRC is requested document each small business assisted information about upcoming DOT to participate in an event, the OSDBU by the SBTRC and type of service(s) procurements and SBTRC activities. will provide DOT materials, the OSDBU provided. A complete list of businesses Hold either monthly or quarterly banner and other information that is that have filled out the form shall be meetings at a time and place agreed deemed necessary for the event. submitted as part of the SBTRC report, upon by SBTRC and planning Submit a conference summary report submitted via email to the Regional committee members (conference calls within the ‘‘Events’’ section of the Assistance Division on a regular basis and/or video conferences are SBTRC Report. The conference (using the SBTRC report). This report acceptable). summary report should summarize the will detail SBTRC activities and Use the initial session hosted by the activity, contacts made, outreach performance results. The data provided SBTRC to explain the mission of the results, and recommendations for must be supported by the narrative (if committee and identify roles of staff and continued or discontinued participation asked). the members of the group. in future similar events sponsored by Ensure that an array of information is Responsibility for the agenda and that organization. made available for distribution to the direction of the Planning Committee Upon request by OSDBU, coordinate small business transportation should be handled by the SBTRC Project efforts with DOT’s grantees and community that is designed to inform Director or his/her designee. recipients at the state and/or local levels and educate the community on DOT/ to sponsor or cosponsor and OSDBU OSDBU services and opportunities. (e) Outreach Services/Conference Participation transportation related conference in the Coordinate efforts with OSDBU in order region (commonly referred to as ‘‘Small to maintain an on-hand inventory of Utilize the services of the System for Business Summits’’). DOT/OSDBU informational materials Award Management (SAM) and other Participate in the SBTRC Monthly for general dissemination and for sources to construct a database of teleconference call, hosted by the distribution at transportation-related regional small businesses that currently OSDBU Regional Assistance Division. conferences and other events. are or may in the future participate in DOT direct and DOT funded (f) Short Term Lending Program (STLP) (c) Business Counseling transportation related contracts, and Work with STLP participating banks Collaborate with agencies, such as make this database available to OSDBU and if not available, other institutions to State, Regional, and Local upon request. Utilize the database of deliver a minimum of five (5) seminars/ Transportation Government Agencies, regional transportation-related small workshops per year on the STLP, and/ SBA, U.S. Department of Commerce’s businesses to match opportunities or other financial assistance programs, Minority Business Development Centers identified through the planning to the transportation-related small (MBDCs), Service Corps of Retired committee forum, FedBiz Opps (a Web- business community. Seminars/ Executives (SCORE), Procurement based system for posting solicitations workshops must cover the entire STLP/ Technical Assistance Centers (PTACs), and other Federal procurement-related loan process, form completion of STLP/ and Small Business Development documents on the Internet), and other loan applications and preparation of the Centers (SBDCs), to offer a broad range sources to eligible small businesses and loan package. of counseling services to transportation- inform the small business community Provide direct support, technical related small business enterprises. about those opportunities. support, and advocacy services to Create a technical assistance plan that Develop a ‘‘targeted’’ database of firms potential STLP applicants to increase will provide each counseled participant (100–150) that have the capacity and the probability of STLP loan approval with the knowledge and skills necessary capabilities, and are ready, willing and and generate a minimum of four (4) to improve the management of their able to participate in DOT contracts and completed STLP applications per year. own small business to expand their subcontracts immediately. This control Provide direct support, technical transportation-related contracts and group will receive ample resources from support, and advocacy services to Small subcontracts portfolio. the SBTRC, i.e., access to working and Disadvantaged Businesses
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interested in obtaining a loan from The committee will provide a forum to sided pages, not including any another type of Government Lending identify and provide workable solutions requested attachments. All pages should Program. Government Lending Programs to barriers that women-owned be numbered at the top of each page. All include Federal, State, and Local level businesses encounter in transportation- documentation, attachments, or other programs. The SBTRC will be required related careers. The committee will have information pertinent to the application to generate a minimum of three (3) 5 members (including the SBTRC must be included in a single completed Government Lending Project Director) with a 1 year submission. Proposal packages must be Program applications per year. membership. Meetings will be submitted electronically to Grants.gov. (g) Bonding Education Program (BEP) conducted on a quarterly basis at an (c) Each applicant must be registered agreeable place and time. in System for Award Management Work with OSDBU, bonding industry 3. Office of Small and Disadvantaged (SAM) and provide their unique Entity partners, local small business Identifier with the proposal. transportation stakeholders, and local Business Utilization (OSDBU) bond producers/agents in your region to Responsibilities (d) Proposals must be received in Grants.gov no later than September 16, deliver a minimum of two (2) complete (a) Provide consultation and technical Bonding Education Programs and secure 2016, 6:00 pm Eastern Standard Time assistance in planning, implementing, (EST). 3% of the total DBE contract value for and evaluating activities under this each transportation project. The BEP announcement. E. Application Review consists of the following components; (b) Provide orientation and training to 1. Selection Criteria (1) The stakeholder’s meeting; (2) the the applicant organization. educational workshops component; (3) (c) Monitor SBTRC activities, OSDBU will award the cooperative the bond readiness component; and (4) cooperative agreement compliance, and agreement on a best value basis, using follow-on assistance to BEP participants overall SBTRC performance. the following criteria to rate and rank to provide technical and procurement (d) Assist SBTRC to develop or applications: assistance based on the prescriptive strengthen its relationships with federal, Applications will be evaluated using plan determined by the BEP. For each state, and local transportation a point system (maximum number of BEP event, work with the local bond authorities, other technical assistance points = 100); producers/agents in your region and the organizations, and DOT grantees. Æ Approach and strategy (25 points) disadvantaged business participants to (e) Facilitate the exchange and Æ deliver a minimum of ten (10) transfer of successful program activities Linkages (25 points) disadvantaged business participants in and information among all SBTRC Æ Organizational Capability (25 points) the BEP with either access to bonding or regions. Æ Staff Capabilities and Experience (15 an increase in the bonding capacity. The (f) Provide the SBTRC with DOT/ points) programs will be funded separately and OSDBU materials and other relevant Æ Cost Proposal (10 points) in addition to the amount listed in 1.3 transportation related information for of the solicitation. dissemination. (a) Approach and Strategy (25 points) (h) Women and Girls in Transportation (g) Maintain effective communication The applicant must describe their Initiative (WITI) with the SBTRC and inform them of strategy to achieve the overall mission Pursuant to Executive Order 13506, transportation news and contracting of the SBTRC as described in this and 49 U.S.C. 332(b)(4) & (7), the opportunities to share with small solicitation and service the small SBTRC shall administer the WITI in businesses in their region. business community in their entire their geographical region. The SBTRC (h) Provide all required forms to be geographic regional area. The applicant shall implement the DOT WITI program used by the SBTRC for reporting must also describe how the specific as defined by the DOT WITI Policy. The purposes under the program. activities outlined in Section C will be WITI program is designed to identify, (i) Perform an annual performance implemented and executed in the educate, attract, and retain women and evaluation of the SBTRC. Satisfactory organization’s regional area. OSDBU girls from a variety of disciplines in the performance is a condition of continued will consider the extent to which the transportation industry. The SBTRC participation of the organization as an proposed objectives are specific, shall also be responsible for outreach SBTRC and execution of all option measurable, time-specific, and activities in the implementation of this years. consistent with OSDBU goals and the program and advertising the WITI D. Application and Submission applicant organization’s overall mission. program to all colleges and universities Information OSDBU will give priority consideration and transportation enemies in their to applicants that demonstrate region. The WITI program shall be (a) Format for Proposals innovation and creativity in their developed in conjunction with the skill Each proposal must be submitted to approach to assist small businesses to needs of the U.S. DOT, state and local Grants.gov in the format set forth in the become successful transportation transportation agencies and appropriate application form attached as Appendix contractors and increase their ability to private sector transportation-related A to this announcement. access DOT contracting opportunities participants including, S/WOBs/DBEs, and financial assistance programs. (b) Address; Number of Copies; and women organizations involved in Applicants must also submit the Deadlines for Submission transportation. Emphasis shall be placed estimated direct costs, other than labor, on establishing partnerships with Any eligible organization, as defined to execute their proposed strategy. transportation-related businesses. The in Section C of this announcement, will OSDBU will consider the quality of the SBTRC will be required to host 1 WITI submit only one proposal per region for applicant’s plan for conducting program event and attend at least 5 events where consideration by OSDBU. Applications activities and the likelihood that the WITI is presented and marketed. must be double spaced, and printed in proposed methods will be successful in Each region will establish a Women in a font size not smaller than 12 points. achieving proposed objectives at the Transportation Advisory Committee. Applications will not exceed 35 single- proposed cost.
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(b) Linkages (25 points) volunteer staff time, and a plan for through alternative matching resources. The applicant must describe their sufficient matching alternative financial The applicant’s budget must be established relationships within their resources to fund the general and adequate to support the proposed geographic region and demonstrate their administrative costs of the SBTRC. The strategy and costs must be reasonable in ability to coordinate and establish applicant must also describe their relation to project objectives. The effective networks with DOT grant administrative and financial staff. It will portion of the submitted budget funded recipients and local/regional technical be the responsibility of the successful by OSDBU cannot exceed the ceiling assistance agencies to maximize candidate to not only provide the outlined in Section B. Applicants are resources. OSDBU will consider services outlined herein to small encouraged to provide in-kind costs and innovative aspects of the applicant’s business in the transportation industry, other innovative cost approaches. but to also successfully manage and approach and strategy to build upon maintain their internal financial, (f) Scoring Applications their existing relationships and establish payment, and invoicing process with A review panel will score each networks with existing resources in their financial management offices. application based upon the evaluation their geographical area. The applicant OSDBU will place an emphasis on criteria listed above. Points will be should describe their strategy to obtain capabilities of the applicant’s financial given for each evaluation criteria and collaboration on SBTRC from DOT management staff. Additionally, a site category, not to exceed the maximum grantees and recipients, transportation visit will be required prior to award for number of points allowed for each prime contractors and subcontractors, those candidates that are being strongly category. Proposals which are deemed the SBA, U.S. Department of considered. A member of the OSDBU non-responsive, do not meet the Commerce’s Minority Business team will contact those candidates to established criteria, or incomplete at the Development Centers (MBDCs), Service schedule the site visits prior to the time of submission will be disqualified. Corps of Retired Executives (SCORE), award of the agreement. OSDBU will perform a responsibility State DOTs, and State Highway determination of the prospective supportive services contractors. In (d) Staff Capability and Experience (15 awardee in the region, which will rating this factor, OSDBU will consider Points) include a site visit, before awarding the the extent to which the applicant The applicant organization must cooperative agreement. demonstrates ability to provide a list of proposed personnel for multidimensional. The applicant must the project, with salaries, fringe benefit (g) Conflicts of Interest demonstrate that they have the ability to burden factors, education levels and Applicants must submit signed access a broad range of supportive previous experience clearly delineated. statements by key personnel and all services to effectively serve a broad The applicant’s project team must be organization principals indicating that range of transportation-related small well-qualified, knowledgeable, and able they, or members of their immediate businesses within their respective to effectively serve the diverse and funded transportation project, nor any geographical region. Emphasis will also broad range of small businesses in their relationships with local or state be placed on the extent to which the geographical region. The Executive transportation agencies that may have applicant identifies a clear outreach Director and the Project Director shall the appearance of a conflict of interest. strategy related to the identified needs be deemed key personnel. Detailed that can be successfully carried out resumes must be submitted for all 2. Review and Selection Process within the period of this agreement and proposed key personnel and outside A team of people will evaluate the a plan for involving the Planning consultants and subcontractors. proposals. Those proposals meeting the Committee in the execution of that Proposed key personnel must have mandatory criteria will be assessed strategy. detailed demonstrated experience based on the above mentioned criteria. providing services similar in scope and (c) Organizational Capability (25 points) The proposals demonstrating the nature to the proposed effort. The organization’s capacity to fully execute The applicant must demonstrate that proposed Project Director will serve as the requirements of this grant will be they have the organizational capability the responsible individual for the considered. The proposal receiving the to meet the program requirements set program. 100% of the Project Director’s highest overall score will be awarded. forth in Section C. The applicant time must be dedicated to the SBTRC. organization must have sufficient Both the Executive and Project Directors F. Federal Award Administration resources and past performance must be located on-site. In this element, Following the evaluation outlined in experience to successfully provide OSDBU will consider the extent to Section E, the OSDBU will announce outreach to transportation-related small which the applicant’s proposed Staffing the awarded applicant with a written businesses in their geographical area Plan; (a) clearly meets the education and Notice of Funding Award. The NOFA and carry out the mission of the SBTRC. experience requirements to accomplish will also include the cooperative In rating this factor, OSDBU will the objectives of the cooperative agreement for signature. consider the extent to which the agreement; (b) delineates staff (a) Administrative and National Policy applicant’s organization has recent, responsibilities and accountability for Requirements relevant and successful experience in all work required and; (c) presents a advocating for and addressing the needs clear and feasible ability to execute the All awards will be administered of small businesses. Applicants will be applicant’s proposed approach and pursuant to the Uniform Administrative given points for demonstrated past strategy. Cost Principles and Audit Requirements transportation-related performance. The for Federal Awards found in 2 CFR part applicant must also describe technical (e) Cost Proposal (10 Points) 200, as adopted by DOT as 2 CFR part and administrative resources it plans to Applicants must submit the total 1201. use in achieving proposed objectives. In proposed cost of establishing and their description, the applicant must administering the SBTRC in the (b) Reporting describe their facilities, computer and applicant’s geographical region for a 12 Performance Reporting—The technical facilities, ability to tap into month period, inclusive of costs funded recipient of this cooperative agreement
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must collect information and report on Issued On: July 25, 2016. Access to the Application the cooperative agreement performance John G. Ralston, The application can be found at with respect to the relevant deliverables Acting Director. http://www.grants.gov/web/grants/ that are expected to be achieved through [FR Doc. 2016–18326 Filed 8–10–16; 8:45 am] search-grants.html, utilizing the ‘‘search the cooperative agreement. Performance BILLING CODE 4910–9X–P by Catalog of Federal Domestic indicators will include formal goals or Assistance number’’ function, and targets, but will include baseline entering in that search field the number measures for an agreed-upon timeline, 64.035. Questions should be referred to and will be used to evaluate and DEPARTMENT OF VETERANS the Veterans Transportation Program monitor the results that the cooperative AFFAIRS Office at (404) 828–5380 (this is not a agreement funds achieve to ensure that toll-free number) or by email at HRTG@ funds achieve the intended long-term Fund Availability under the Grants for va.gov. For further information on outcomes of the cooperative agreement Transportation of Veterans in Highly Grants for Transportation of Veterans in program. Rural Areas Highly Rural Areas Program Progress Reporting—The recipient for AGENCY: Department of Veterans Affairs. requirements, see the Final Rule published in the Federal Register (78 this cooperative agreement funding ACTION: Notice of Funding Availability FR 19586) on April 2, 2013, which is must submit quarterly progress reports (Grant Renewals). and annual Federal Financial Report codified in 38 CFR 17.700–730. (SF–425) on the financial condition of SUMMARY: The Department of Veterans Submission of Application Package the cooperative agreement and its Affairs (VA) is announcing the Applications may not be sent by progress, as well as an Annual Budget availability of funds under the Grants facsimile. Applications must be Review and Implementation Plan to for Transportation of Veterans in Highly submitted to www.grants.gov by the monitor the use of Federal funds and Rural Areas. This Notice of Funding application deadline. Applications must ensure accountability and financial Availability (Notice) contains be submitted as a complete package. transparency in the program. information concerning the Grants for Materials arriving separately will not be Transportation of Veterans in Highly G. Federal Awarding Agency Contracts included in the application package for Rural Areas program, grant renewal consideration and may result in the application process, and amount of For further information this notice application being rejected. All funding available. please contact the OSDBU program staff applicable forms cited in the application via email at [email protected], or call Ms. FOR FURTHER INFORMATION CONTACT: description must be included. Steronica Mattocks at 202–366–0658. To Darren Wallace, National Coordinator, SUPPLEMENTARY INFORMATION: ensure applicants receive accurate Highly Rural Transportation Grants, information about eligibility or the Veterans Transportation Program, Funding Opportunity Description program, the applicant is encouraged to Member Services (10NF4), 2957 Overview contact DOT directly, rather than Clairmont Road, Atlanta, GA 30329; through intermediaries or third parties, (404) 828–5380 (this is not a toll-free Access to VA care for veterans that are with questions. number); and Sylvester Wallace at in highly rural areas continues to be an [email protected]. issue across the United States. VA has H. Protection of Confidential Business Announcement Type: Notice of established this program to help address Information Funding Availability (Grant Renewals) barriers to access to care. This program funds innovative approaches to All information submitted as part of Funding Opportunity Number: VA– HRTG–2016 transporting veterans in highly rural or in support of any application shall areas who typically have longer use publicly available data or data that Catalog of Federal Domestic Assistance (CFDA) Number: 64.035 commute times to Department of can be made public and methodologies Veterans Affairs medical centers (VA that are accepted by industry practice DATES AND ADDRESSES: Applications for Medical Centers). and standards, to the extent possible. If assistance under the Grants for the application includes information Transportation of Veterans in Highly Purpose you consider to be a trade secret or Rural Areas Program must be submitted VA Veterans Transportation Program confidential commercial or financial to www.grants.gov by 4:00 p.m. eastern (VTP) is pleased to announce that it is information, the applicant should do the daylight time on September 12, 2016. In seeking grant renewal applications for following: (1) Note on the front cover the interest of fairness to all competing Grants for Transportation of Veterans in that the submission ‘‘Contains applicants and with the single exception Highly Rural Areas. This program Confidential Business Information described farther below regarding furthers the Department’s mission by (CBI)’’; (2) mark each affected page unforeseen technical problems beyond offering renewal grants to current ‘‘CBI’’; and (3) highlight or otherwise the control of the applicant with the grantees to enable them to continue to denote the CBI portions. DOT protects Grants.gov Web site, this deadline is assist veterans in highly rural areas such information from disclosure to the firm as to date and hour, and VA will through innovative transportation extent allowed under applicable law. In treat as ineligible for consideration any services to travel to VA medical centers the event DOT received a Freedom of application that is received after the and to otherwise assist in providing Information Act (FOIA) request for the deadline. Applicants should take this transportation services in connection information, DOT will follow the practice into account and make early with the provision of VA medical care procedures described in its FOIA submission of their materials to avoid to these veterans. regulation as 49 CFR 7.17. Only any risk of loss of eligibility brought information that is ultimately about by unanticipated delays, Authority determined to be confidential under that computer service outages (in the case of Funding applied for under this Notice procedure will be exempt from grants.gov), or other delivery-related is authorized by section 307 of the disclosure under FOIA. problems. Caregivers and Veterans Omnibus
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Health Services Act of 2010, Pub. L. requirement must be specifically receive an email validation message 111–163, 307 (the 2010 Act), as addressed in the renewal grant from Grants.gov. The validation message implemented by regulations codified at application. will state whether the renewal grant 38 CFR 17.700–730, Grants for application has been received and Cost Sharing or Matching Transportation of Veterans in Highly validated, or rejected, with an Rural Areas. Funds made available This solicitation does not require explanation. Important: Applicants are under this Notice are subject to the grantees to provide matching funds as a urged to submit their applications at requirements of the aforementioned condition of receiving such grants. least 72 hours prior to the due date of regulations and other applicable laws Other the application to allow time to receive and regulations. the validation message and to correct Additional grant application any problems that may have caused a Award Information requirements are specified in the rejection notification. In accordance with 38 CFR 17.710, application package. Submission of an If an applicant experiences VA is issuing this Notice for renewal incorrect or incomplete application unforeseen Grants.gov technical issues grants under the Grants for package will result in the application beyond the applicant’s control that Transportation of Veterans in Highly being rejected during the threshold prevents submission of its application Rural Areas Program for fiscal year review, the initial review conducted by by the deadline, the applicant must 2016. Approximately $3 million is VA, to ensure the application package contact the VTP Office staff no later authorized to be appropriated for this contains all required forms and than 24 hours after the deadline and fiscal year. If additional funding certifications. Complete packages will request approval to submit its becomes available, VA will issue then be subject to the evaluation/scoring application. At that time, VTP Office additional Notices of Funding and selection processes described in staff will instruct the applicant to Availability to permit other grantees to § 17.705(c) and (d), respectively. submit specific information detailing apply for Grants under the Program (in Applicants will be notified of any the technical difficulties. The applicant accordance with the terms and additional information needed to must email: a description of the conditions of such Notices of Funding confirm or clarify information provided technical difficulties, a timeline of Availability). The following in the renewal grant application and the submission efforts, the complete grant requirements apply to grants awarded deadline by which to submit such application, the applicant’s Data under this Notice: information. Universal Numbering System (DUNS) • number, and Grants.gov Help Desk One renewal grant may be awarded Application and Submission tracking number(s) received. After the to each grantee for fiscal year 2016 for Information each highly rural area in which the program office reviews all of the grantee provides transportation Renewal applications will be information submitted, and contacts the services.(A listing of the highly rural submitted through Grants.gov. Grants.gov Help Desk to validate the counties can be found at this Web site Grants.gov is a ‘‘one-stop storefront’’ technical issues reported, VA will under additional resources:http:// that provides a unified process for all contact the applicant to either approve www.va.gov/HEALTHBENEFITS/vtp/ customers of federal awards to find or deny the request to submit a late grant_applicants.asp). funding opportunities and apply for application. If the technical issues • Transportation services may not be funding. Complete instructions on how reported cannot be validated, the simultaneously provided by more than to register and submit a renewal grant application will be rejected as untimely. one grantee in any single highly rural application can be found at To ensure a fair competition for area. www.Grants.gov. If the applicant limited discretionary funds, the • No single grant will exceed $50,000. experiences technical difficulties at any following conditions are not valid • A veteran who is provided point during this process, please call the reasons to permit late submissions: (1) transportation services through a Grants.gov Customer Support Hotline at Failure to begin the registration process grantee’s use of these grant monies will 800–518–4726, 24 hours a day, 7 days in sufficient time, (2) failure to follow not be charged for such services. a week, except federal holidays. Grants.gov instructions on how to Registration in Grants.gov is required • Renewal grants awarded under this register and apply as posted on its Web prior to submission. VA strongly Notice will be for a 1-year period. site, (3) failure to follow all of the encourages registering with Grants.gov • All awards are subject to the instructions in the VA solicitation, and several weeks before the deadline for availability of appropriated funds and to (4) technical issues experienced with application submission. The deadline any modifications or additional the applicant’s computer or information for applying for funding under this requirements that may be imposed by technology (IT) environment. announcement is September 12, 2016. law. Notifications regarding known technical Search for the funding opportunity on problems with Grants.gov, if any, are Eligibility Information Grants.gov. Please use the following posted on the Grants.gov Web site. identifying information when searching Eligible Applicants for the funding opportunity on Content and Form of Application Current 2015 grantees are the only Grants.gov. The Catalog of Federal Submission eligible entities that are eligible to apply Domestic Assistance (CFDA) number for This section describes what a renewal for a renewal grant. Interested eligible this solicitation is 64.035, titled application must include. Applicants entities must submit a complete renewal ‘‘Veterans transportation program,’’ and should anticipate that failure to submit grant application package to be the funding opportunity number is VA– an application that contains all of the considered for a grant renewal. Further, HRTG–2016. specified elements will result in the a renewal grant will only be awarded if Submit an application consistent with rejection of their application at the the grantee’s program will remain this solicitation by following the threshold review stage. Moreover, substantially the same as the program directions in Grants.gov. Within 24–48 applicants should anticipate that if for which the original grant was hours after submitting the electronic applications are not adequately awarded. How the grantee will meet this application, the applicant should responsive to the scope of the
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solicitation, particularly to any critical involving human subjects is subject to organization or, if the applicant’s element, or fail to include a program certain added protections, as set forth in accounting system permits, costs may be narrative, budget detail worksheet 38 CFR part 16. Applicants should allocated in the direct cost categories. If including a budget narrative, tribal provide sufficient information for VA to VA is the cognizant federal agency, resolution (if applicable), eligibly entity determine whether particular project obtain information needed to submit an designation, or a list of the highly rural activities they propose would either indirect cost rate proposal at the contact county or counties to be served, they intentionally or unintentionally collect person listed in this solicitation. will be rejected and receive no further and/or use information in such a way Tribal Authorizing Resolution (if consideration. that it meets VA’s regulatory definition Applicable) of research and thereby invoke the Threshold Review Criteria: (Critical If an application identifies a Elements) requirements and procedures set forth in 38 CFR part 16. subrecipient that is either (1) a tribe or • Application deadline: Applications tribal organization or (2) a third party not received by the application deadline Budget Detail Worksheet and Budget proposing to provide direct services or through www.grants.gov will not be Narrative assistance to residents on tribal lands, reviewed. Budget Detail Worksheet: A sample then a current authorizing resolution of • Eligibility: Applications that do not SF 424A Budget Detail Worksheet can the governing body of the tribal entity conform to the eligibility requirements be found at the www.grants.gov Web or other enactment of the tribal council at the beginning section of this site. Please submit a budget and label it, or comparable governing body document will not be reviewed. as the example above indicates. If the authorizing the inclusion of the tribe or • Budget detail worksheet including a budget is submitted in a different tribal organization and its membership budget narrative: VA strongly format, the budget categories listed in must be included with the application. recommends use of appropriately the sample budget worksheet must be In those instances when an organization descriptive file names (e.g., ‘‘Program included. or consortium of tribes proposes to Narrative,’’ ‘‘Budget Detail Worksheet Budget Narrative: The Budget apply for a grant on behalf of a tribe or and Budget Narrative,’’ ‘‘Timelines,’’ Narrative should thoroughly and clearly multiple specific tribes, then the ‘‘Memoranda of Understanding,’’ describe every category of expense listed application must include a resolution ‘‘Resumes’’) for all attachments. VA in the Budget Detail Worksheet. The from all tribes that will be included as recommends that resumes be included narrative should be mathematically a part of the services/assistance in a single file. provided under the grant. A consortium • sound and correspond with the Information to complete the information and figures provided in the of tribes for which existing consortium Application for Federal Assistance (SF– Budget Detail Worksheet. The narrative bylaws allow action without support 424): The SF–424 is a standard form should explain how all costs were from all tribes in the consortium (i.e., required for use as a cover sheet for estimated and calculated and how they without authorizing resolution or other submission of pre-applications, are relevant to the completion of the enactment of each tribal governing applications, and related information. proposed project. The narrative may body) may submit a copy of its Grants.gov takes information from the include tables for clarification purposes consortium bylaws with the application applicant’s profile to populate the fields but need not be in a spreadsheet format. in order to satisfy this requirement. on this form. • As with the Budget Detail Worksheet, Submission Dates and Times Program Narrative: Provide a the Budget Narrative must be broken detailed narrative of your program scope down by year. Note: All non-federal Renewal grant applications under the and specifically discuss the innovative entities have to be in compliance with Grants for Transportation of Veterans in modes and methods of transportation 2 CFR 200.400–475 Cost Principles and Highly Rural Areas Program must be services to be provided. If the provision all Office of Management and Budget submitted to www.grants.gov by 4:00 of transportation services will (OMB) Regulations and Circulars. p.m. eastern daylight time on September necessitate procurement or use of Budget Brief (example): 12, 2016. In the interest of fairness to all specific equipment, such equipment 1. Our organization requests ll for competing applicants, this deadline is must be specifically listed. the acquisition of ll van(s). firm as to date and hour and with the Note on project evaluations: 2. The total cost of the van(s) ll. single exception described above Applicants that propose to use funds This is the amount requested from VA. regarding unforeseen technical awarded through this solicitation to 3. Our organization will utilize ll problems beyond the control of the conduct project evaluations should be for innovative approaches for applicant with the Grants.gov Web site, aware that certain project evaluations transporting veterans. This is the VA will treat as ineligible for (such as systematic investigations amount requested from VA for a consideration any application that is designed to develop or contribute to maximum of $50,000. received after the deadline. Applicants knowledge) may constitute research. should take this into account and make However, project evaluations that are Indirect Cost Rate Agreement (if early submission of their materials to intended only to generate internal Applicable) avoid any risk of loss of eligibility improvements to a program or service, Indirect costs are allowed only if the brought about by unanticipated delays, or are conducted only to meet VA’s applicant has a federally approved computer service outages (in the case of performance measure data reporting indirect cost rate. (This requirement grants.gov), or other delivery-related requirements, likely do not constitute does not apply to units of local problems. research. Research, for the purposes of government.) A copy of the rate The application can be found at VA-funded programs, is defined as, ‘‘a approval must be attached. If the http://www.grants.gov/web/grants/ systematic investigation, including applicant does not have an approved search-grants.html, utilizing the ‘‘search research development, testing, and rate, one can be requested by contacting by Catalog of Federal Domestic evaluation, designed to develop or the applicant’s cognizant federal agency, Assistance number’’ function, and contribute to generalizable knowledge.’’ which will review all documentation entering in that search field the number 38 CFR 16.102(d). In addition, research and approve a rate for the applicant 64.035. Questions should be referred to
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the Veterans Transportation Program Lobbying Activities (Required for any Review and Selection Process Office at (404) 828–5380 (this is not a applicant that expends any funds for Selection of Renewal Grants for toll-free number) or by email at HRTG@ lobbying activities; this form must be Transportation of Veterans in Highly va.gov. For further information on downloaded, completed, and then Rural Areas is very competitive. Listed Grants for Transportation of Veterans in uploaded); and Standard Assurances below are the scoring and selection Highly Rural Areas Program (SF 424B) (Required to be submitted to criteria: requirements, see the governing the VTP Office prior to the receipt of 1. Renewal Grant Scoring: Renewal regulations codified at 38 CFR 17.700– any award funds). applications will be scored using the 730. Renewal grant applications may not Application Review Information following selection criteria: A. VA will award up to 55 points (an be sent by facsimile. These applications Criteria must be submitted to www.grants.gov by applicant must score at a minimum of the application deadline; they must also VA is committed to ensuring a fair 27.5 points) based on the success of the be submitted as a complete package. and open process for awarding these grantee’s program, as demonstrated by Materials arriving separately will not be renewal grants. The VTP Office will the following: Application shows that included in the application package for review the renewal grant application to the grantee or identified subrecipient consideration and may result in the make sure that the information provided transportation services which application being rejected. All presented is reasonable, understandable, allowed participants to be provided applicable forms cited in the application measurable, and achievable, as well as medical care timely and as scheduled; description must be included. consistent with the solicitation. Peer and application shows that participants reviewers will conduct a threshold were satisfied with the transportation Intergovernmental Review review of all applications submitted services provided by the grantee or Some states require that applicants under this solicitation to ensure they identified subrecipient, as described in must contact their State’s Single Point of meet all of the critical elements and all the Notice; Contact (SPOC) to find out and comply other minimum requirements as B. VA will award up to 35 points (an with the State’s process, to comply with identified herein. The VTP Office may applicant must score at a minimum of Executive Order (E.O.) 12372 (1982). use either internal peer reviewers, 17.5 points) based on the cost Names and addresses of the SPOCs are external peer reviewers, or a effectiveness of the program, as listed in the Office of Management and combination to review the applications demonstrated by the following: The Budget’s homepage at under this solicitation. An external peer grantee or identified subrecipient www.whitehouse.gov/omb/grants_spoc/ reviewer is an expert in the field of the administered the program on budget subject matter of a given solicitation and grant funds were utilized in a Funding Restrictions who is NOT a current VA employee. An sensible manner, as interpreted by Grants will only be awarded to those internal reviewer is a current VA information provided by the grantee to organizations that are eligible under law employee who is well-versed or has VA under 38 CFR 17.725(a)(1–7); and as described in the eligibility expertise in the subject matter of this C. VA will award up to 15 (an information section. solicitation. Eligible applications will applicant must score at a minimum of Other Submission Requirements then be evaluated, scored, and rated by 7.5 points) points based on the extent to a peer review panel. Peer reviewers’ which the program complied with the For technical assistance with ratings and any resulting grant agreement and applicable laws submitting the application, contact the recommendations are advisory only. and regulations. Grants.gov Customer Support Hotline at 2. Renewal Grant Selection: VA will 800–518–4726 or via email to support@ The VTP, Member Services Office conducts a financial review of use the following process to award grants.gov. renewal grants: Note: The Grants.gov Support Hotline applications for potential discretionary awards to evaluate the fiscal integrity A. VA will rank those grantees who hours of operation are 24 hours a day, receive at least the minimum amount of 7 days a week, except federal holidays. and financial capability of applicants; examines proposed costs to determine if total points (52.5) and points per For assistance with any other category set forth in the Notice. The requirement of this solicitation, contact the Budget Detail Worksheet and Budget Narrative accurately explain project grantees will be ranked in order from Darren Wallace, National Program highest to lowest scores. Coordinator for Grants for costs; and determines whether costs are B. VA will use the grantee’s ranking Transportation of Veterans in Highly reasonable, necessary, and allowable as the basis for selection for funding. VA Rural Areas, at (404) 828–5380 (this is under applicable federal cost principles will fund the highest-ranked grantees not a toll-free number) or by email to and agency regulations. for which funding is available. [email protected]. Absent explicit statutory Additional forms that may be required authorization or written delegation of Award Administration Information in connection with an award are authority to the contrary, the Veterans available for download on Health Administration, through the VTP Award Notices www.grants.gov. Examples of these Office, will forward the reviewers’ Successful applicants will receive a forms can be viewed at the recommendations for award to the Notice of Award (NoA) signed and www.grants.gov Web site. For successful Secretary of Veterans Affairs, who will dated by the Assistant Deputy Under applicants, receipt of funds will be then review and approve each award Secretary for Health for Administrative contingent upon submission of all decision. Such determinations by the Operations that will set forth the necessary forms. Please note in Secretary will be final. VA will also give amount of the award and other pertinent particular the following forms: consideration to factors including, but information. The NoA is the legal Certifications Regarding Lobbying; not limited to: underserved populations, document/instrument issued to notify Debarment, Suspension and Other geographic diversity, strategic priorities, the awardee that an award has been Responsibility Matters; Drug-Free and available funding when making made and that funds may be requested. Workplace Requirement; Disclosure of awards. It will also include standard Terms and
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Conditions related to participation in Administrative and National Policy monitoring may include: Monitoring the the Program. Requirements performance of a grantee’s or The NoA will be sent through the U.S. Successful applicants selected for subrecipient’s personnel, procurements, Postal Service to the awardee awards must agree to comply with and/or use of grant-funded property; organization as listed on its SF424. Note additional applicable legal requirements collecting, analyzing data, and assessing that any communication between the upon acceptance of an award. (VA program implementation and VTP Office and awardees prior to the strongly encourages applicants to effectiveness; assessing costs and issuance of the NoA is not authorization review the information pertaining to utilization; and providing technical to begin performance on the project. these additional requirements prior to assistance when needed. Site visit Recipients will use the U.S. submitting a renewal application.) As to monitoring will include the above- Department of Health and Human those additional requirements, we note described activities, in addition to the Services Payment Management System that while their original grants were conduct of safety assessments and, if for grant drawdowns. Instructions for subject to additional legal requirements applicable, verification of both current submitting requests for payment may be as set forth in 38 CFR parts 43 and 49 driver’s licenses and vehicle insurance found at http://www.dpm.psc.gov/. those regulatory provisions have since coverage. Unsuccessful applicants will be been superseded by the Common Rule notified of their status by letter, which Federal Financial Report governing all Federal Grant Programs. will likewise be sent through the U.S. Awardees are required to submit the The Common Rule is codified at 2 CFR Postal Service to the applicant FFR SF 425 on a quarterly basis. More part 200. Thus, grantees and identified organization as listed on its SF 424. details will be announced in the NoA. subrecipients awarded renewal grants Renewal Grant Agreements under the Program must agree as part of Audit Requirements After an applicant is selected for a their grant agreement to comply with all Awardees must comply with the audit renewal grant in accordance with 38 requirements of the Common Rule, as requirements of Office of Management CFR 17.705(d), VA will draft a renewal applicable. and Budget (OMB) Uniform Guidance 2 grant agreement to be executed by the Reporting CFR part 200 subpart F. Information on Assistant Deputy Under Secretary for the scope, frequency and other aspects Health for Administrative Operations in Progress Reports of the audits can be found on the VA and the grantee. Upon execution of Awardees must agree to cooperate internet at https://federalregister.gov/a/ the renewal grant agreement, VA will with any VA evaluation of the program 2013-30465. obligate the approved amount. The and provide required quarterly, annual, Program Variations renewal grant agreement will provide and final (at the end of the fiscal year) that: reports in a form prescribed by VTP. A Any changes in a grantee’s program 1. The grantee must operate the final report consists of a summation of activities which result in deviations program in accordance with the grant activities which include progress from the grant renewal agreement must provisions of this section and the grant toward goals, financial administration of be reported to VA. application; grant funds, grant administration issues Additional Reporting 2. If a grantee’s renewal application and barriers. Reports are to be submitted identified a subrecipient, such electronically. These reports must Additional reporting requirements subrecipient must operate the program outline how grant funds were used, may be requested by VA to allow VA to in accordance with the provisions of describe program progress and barriers, fully assess program effectiveness. this section and the grant application; and provide measurable outcomes. Notice of New Post-Award Reporting and Required quarterly and annual reports Requirements 3. If a grantee’s application identified must include the following information: that funds will be used to procure or • Record of time expended assisting Applicants should anticipate that all operate vehicles to directly provide with the provision of transportation recipients (excluding an individual transportation services, the following services; recipient of Federal assistance) of requirements must be met: • Record of grant funds expended awards of $25,000 or more under this A. Title to the vehicles must vest assisting with the provision of solicitation, consistent with the Federal solely in the grantee or in the identified transportation services; Funding Accountability and subrecipient or with leased vehicles in • Trips completed; Transparency Act of 2006 (FFATA), an identified lender; • Total distance covered; Pub. L. 109–282 (Sept. 26, 2006), will be B. The grantee or identified • Veterans served; required to report award information on subrecipient must, at a minimum, • Locations which received the subaward reporting system of any provide motor vehicle liability transportation services; and first-tier subawards totaling $25,000 or insurance for the vehicles to the same • Results of veteran satisfaction more, and, in certain cases, to report extent they would insure vehicles survey. information on the names and total procured with their own funds; compensation of the five most highly Program Monitoring C. All vehicle operators must be compensated executives of the recipient licensed in a U.S. State or Territory to The VTP is responsible for program and first-tier subrecipients. Each operate such vehicles; monitoring. All awardees will be applicant entity must ensure that it has D. Vehicles must be safe and required to cooperate in providing the the necessary processes and systems in maintained in accordance with the necessary data elements to the VTP. The place to comply with the reporting manufacturer’s recommendations; and goal of program monitoring is to ensure requirements should it receive funding. E. Vehicles must be operated in program requirements are met; this will It is expected that reports regarding accordance with applicable Department be accomplished by tracking subawards will be made through the of Transportation regulations performance and identifying quality and FFATA Subaward Reporting System concerning transit requirements under compliance problems through early (FSRS) found at https://www.fsrs.gov. the Americans with Disabilities Act. detection. Methods of program The FFATA Subaward Reporting
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System is the reporting tool Federal an award made under this solicitation then prohibited under 38 CFR 17.730(b) prime awardees (i.e. prime contractors may be made to a subrecipient that is from receipt of any further grant funds. and prime grants recipients) use to subject to the terms of FFATA unless Signing Authority capture and report subaward and the potential subrecipient acquires and executive compensation data regarding provides a DUNS number. The Secretary of Veterans Affairs, or their first-tier subawards to meet the designee, approved this document and FFATA reporting requirements. Prime Other Information authorized the undersigned to sign and contract awardees will report against Pursuant to 38 CFR 17.730(a), VA may submit the document to the Office of the sub-contracts awarded and prime grant recover from the grantee any funds that Federal Register for publication awardees will report against sub-grants are not used in accordance with a grant electronically as an official document of awarded. Prime Contractors awarded a agreement. If VA decides to recover the Department of Veterans Affairs. Gina Federal contract or order that is subject funds, VA will issue to the grantee a S. Farrisee, Deputy Chief of Staff, to Federal Acquisition Regulation clause notice of intent to recover grant funds, Department of Veterans Affairs, 52.204–10 (Reporting Executive and the grantee will then have 30 days approved this document on August 2, 2016, for publication. Compensation and First-Tier to submit documentation demonstrating Subcontract Awards) are required to file why the grant funds should not be Dated: August 2, 2016. a FFATA subaward report by the end of recovered. After review of all submitted Martin, the month following the month in documentation, VA will determine Office Program Manager, Office of Regulation which the prime contractor awards any whether action will be taken to recover Policy & Management, Office of the Secretary, subcontract greater than $25,000. the grant funds. When VA determines Department of Veterans Affairs. Please note also that applicants action will be taken to recover grant [FR Doc. 2016–19163 Filed 8–10–16; 8:45 am] should anticipate that no subaward of funds from the grantee, the grantee is BILLING CODE 8320–01–P
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Part II
Department of Justice
28 CFR Parts 35 and 36 Amendment of Americans With Disabilities Act Title II and Title III Regulations To Implement ADA Amendments Act of 2008; Final Rule
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DEPARTMENT OF JUSTICE definitions of ‘‘disability’’ in the title II specific provisions in the ADA and title III regulations are identical, Amendments Act or on specific Office of the Attorney General and the preamble will discuss the language in the legislative history. The revisions to both regulations revised language clarifies that the term 28 CFR Parts 35 and 36 concurrently. Because the ADA ‘‘disability’’ shall be interpreted broadly [CRT Docket No. 124; AG Order No. 3702– Amendments Act’s revisions to the ADA and explains that the primary object of 2016] have been codified into the U.S. Code, attention in cases brought under the the final rule references the revised U.S. ADA should be whether covered entities RIN 1190–AA59 Code provisions except in those cases have complied with their obligations Amendment of Americans With where the reference is to the Findings not to discriminate based on disability Disabilities Act Title II and Title III and Purposes of the ADA Amendments and that the question of whether an Regulations To Implement ADA Act, in which case the citation is to individual’s impairment is a disability Amendments Act of 2008 section 2 of Public Law 110–325, under the ADA should not demand September 25, 2008.1 extensive analysis. The revised AGENCY: Civil Rights Division, This final rule was submitted to the regulations expand the definition of Department of Justice. Office of Management and Budget’s ‘‘major life activities’’ by providing a ACTION: Final rule. (OMB) Office of Information and non-exhaustive list of major life Regulatory Affairs for review prior to activities that specifically includes the SUMMARY: The Department of Justice publication in the Federal Register. operation of major bodily functions. The (Department) is issuing this final rule to I. Executive Summary revisions also add rules of construction amend its Americans with Disabilities to be applied when determining Act (ADA) regulations in order to Purpose whether an impairment substantially incorporate the statutory changes to the This rule is necessary in order to limits a major life activity. These rules ADA set forth in the ADA Amendments incorporate the ADA Amendments Act’s of construction state the following: Act of 2008 (ADA Amendments Act or changes to titles II (nondiscrimination —That the term ‘‘substantially limits’’ the Act), which took effect on January in State and local government services) shall be construed broadly in favor of 1, 2009. In response to earlier Supreme and III (nondiscrimination by public expansive coverage, to the maximum Court decisions that significantly accommodations and commercial extent permitted by the terms of the narrowed the application of the facilities) of the ADA into the ADA; definition of ‘‘disability’’ under the Department’s ADA regulations and to —that an impairment is a disability if it ADA, Congress enacted the ADA provide additional guidance on how to substantially limits the ability of an Amendments Act to restore the apply those changes. individual to perform a major life understanding that the definition of activity as compared to most people Legal Authority ‘‘disability’’ shall be broadly construed in the general population; and applied without extensive analysis. The ADA Amendments Act was —that the primary issue in a case Congress intended that the primary signed into law by President George W. brought under the ADA should be object of attention in cases brought Bush on September 25, 2008, with a whether an entity covered under the under the ADA should be whether statutory effective date of January 1, ADA has complied with its covered entities have complied with 2009. Public Law 110–325, sec. 8, 122 obligations and whether their statutory obligations not to Stat. 3553, 3559 (2008). The Act discrimination has occurred, not the discriminate based on disability. In this authorizes the Attorney General to issue extent to which the individual’s final rule, the Department is adding new regulations under title II and title III of impairment substantially limits a sections to its title II and title III ADA the ADA to implement sections 3 and 4 major life activity; regulations to set forth the proper of the Act, including the rules of —that in making the individualized meaning and interpretation of the construction set forth in section 3. 42 assessment required by the ADA, the definition of ‘‘disability’’ and to make U.S.C. 12205a. term ‘‘substantially limits’’ shall be related changes required by the ADA interpreted and applied to require a Amendments Act in other sections of Summary of Key Provisions of the Act and Rule degree of functional limitation that is the regulations. lower than the standard for DATES: This rule will take effect October The ADA Amendments Act made ‘‘substantially limits’’ applied prior to 11, 2016. important changes to the meaning and the ADA Amendments Act; FOR FURTHER INFORMATION CONTACT: interpretation of the term ‘‘disability’’ in —that the comparison of an individual’s Rebecca Bond, Section Chief, Disability the ADA in order to effectuate performance of a major life activity to Rights Section, Civil Rights Division, Congress’s intent to restore the broad the performance of the same major life U.S. Department of Justice, at (202) 307– scope of the ADA by making it easier for activity by most people in the general 0663 (voice or TTY); this is not a toll- an individual to establish that he or she population usually will not require free number. Information may also be has a disability. See Public Law 110– scientific, medical, or statistical obtained from the Department’s toll-free 325, sec. 2(a)(3)–(7). The Department is evidence; ADA Information Line at (800) 514– making several major revisions to the —that the ameliorative effects of 0301 (voice) or (800) 514–0383 (TTY). meaning and interpretation of the term mitigating measures other than You may obtain copies of this final ‘‘disability’’ contained in the title II and ‘‘ordinary eyeglasses or contact rule in an alternative format by calling title III ADA regulations in order to lenses’’ shall not be considered in the ADA Information Line at (800) 514– implement the ADA Amendments Act. assessing whether an individual has a 0301 (voice) and (800) 514–0383 (TTY). These regulatory revisions are based on ‘‘disability’’; This final rule is also available on the —that an impairment that is episodic or ADA Home Page at www.ada.gov. 1 The Findings and Purposes of the ADA Amendments Act are also referenced in the in remission is a disability if it would SUPPLEMENTARY INFORMATION: The codification of the ADA as a note to 42 U.S.C. substantially limit a major life activity meaning and interpretation of the 12101. when active; and
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—that an impairment that substantially • Modified the rules of construction for extra time on exams as a direct result limits one major life activity need not to make them more consistent with the of the ADA Amendments Act. Although substantially limit other major life statute and to provide more clarity, the Department’s analysis focused only activities in order to be considered a including §§ 35.108(a)(2) and on these specific costs, the Department substantially limiting impairment. 36.105(a)(2), 35.108(c)(2) and recognized that the ADA Amendments The final rule also states that an 36.105(c)(2), and 35.108(d)(1) and Act extends coverage to people with the individual meets the requirement of 36.105(d)(1). full range of disabilities, and the ‘‘being regarded as having such an • Revised or added several provisions accommodation of those individuals impairment’’ if the individual to more closely conform to the EEOC might entail some economic costs. After establishes that he or she has been regulation. review of the comments, and based on subjected to a prohibited action II. Summary of Regulatory Assessment the Department’s own research, the because of an actual or perceived Department has determined, however, physical or mental impairment As noted above, Congress enacted the that the above-referenced exam costs whether or not the impairment limits ADA Amendments Act in 2008 to represent the only category of or is perceived to limit a major life ensure that persons with disabilities measurable compliance costs that the activity. It also provides that who were denied coverage previously ADA Amendments Act will impose and individuals covered only under the under the ADA would again be able to the Department was able to assess. ‘‘regarded as’’ prong are not entitled rely on the protections of the ADA. As While other ADA Amendments Act to reasonable modifications. a result, the Department believes that compliance costs might also ensue, the The ADA Amendments Act’s the enactment of the law benefits Department has not been able to revisions to the ADA apply to title I millions of Americans, and that the specifically identify and measure these (employment), title II (State and local benefits to many of these individuals are potential costs. The Department governments), and title III (public non-quantifiable, but nonetheless believes, however, that any other accommodations) of the ADA. significant. This rule incorporates into potential costs directly resulting from Accordingly, consistent with Executive the Department’s titles II and III the ADA Amendments Act will likely be Order 13563’s instruction to agencies to regulations the changes made by the minimal and have little impact on the coordinate rules across agencies and ADA Amendments Act. In accordance overall results of this analysis. harmonize regulatory requirements, the with OMB Circular A–4, the Department The data used to support the Department has adopted, where estimates the costs and benefits of this estimates in this Final Regulatory appropriate, regulatory language that is proposed rule using a pre-ADA Assessment (Final RA) focus on (1) the identical to the revisions to the Equal Amendments Act baseline. Thus, the increase in the number of postsecondary Employment Opportunity Commission’s effects that are estimated in this analysis students or national examination test (EEOC) title I regulations implementing are due to statutory mandates that are takers requesting and receiving the ADA Amendments Act. See 76 FR not under the Department’s discretion. accommodations—specifically, requests 16978 (Mar. 25, 2011). This will The Department has determined that the for extra time on exams—as a result of promote consistency in the application costs of this rule do not reach $100 the changes made to the ADA by the of the ADA and avoid confusion among million in any single year, and thus it ADA Amendments Act; and (2) the entities subject to both titles I and II, as is not an economically significant rule. actual cost of these additional well as those subject to both titles I and In the Initial Regulatory Assessment accommodations, which involves costs III. (Initial RA), the analysis focused on of providing staff with the training on estimating costs for processing and the changes made to the ADA by the Changes Made From the Proposed Rule providing reasonable modifications and ADA Amendments Act, administrative The final rule retains nearly all of the testing accommodations 2 to individuals costs to process the additional proposed regulatory text, although some with learning disabilities and ADHD 3 accommodation requests made as a sections were reorganized and direct result of the ADA Amendments renumbered. The section-by-section 2 For ease of reference for purposes of the Act, and the costs of additional proctor discussion of costs in the Regulatory Assessment, analysis in appendix C to part 35 and the Department will use the term time needed for these additional appendix E to part 36 responds to ‘‘accommodations’’ to reference the provision of accommodation requests. For both comments and provides additional extra time, whether it is requested as a reasonable postsecondary institutions and national interpretive guidance on particular modification pursuant to 28 CFR 35.130(b)(7) and testing entities, costs are broken down 28 CFR 36.302, or as a testing accommodation provisions. The revisions to the (modifications, accommodations, or auxiliary aids into three components: regulatory text, which include and services) provided pursuant to 42 U.S.C. 12189 • One-time cost of training staff on substantive changes in response to and 28 CFR 36.309. The Department wishes to relevant impact of ADA Amendments comments, include the following: preserve the legal distinction between these two Act; • terms in its guidance on the requirements of the • Added Attention-Deficit/ ADA Amendments Act so it will use both terms Annual cost of processing Hyperactivity Disorder (ADHD) as an where appropriate in the Section by Section additional accommodation requests for example of a physical or mental Analysis and Guidance. extra exam time made as a direct result impairment in §§ 35.108(b)(2) and 3 The Department is using the term ADHD in the of the ADA Amendments Act; and 36.105(b)(2). same manner as it is currently used in the • Annual cost of proctoring • Diagnostic and Statistical Manual of Mental Added ‘‘writing’’ as an example of Disorders: Fifth Edition (DSM–5), to refer to three additional time on exams as a direct a major life activity in §§ 35.108(c) and different presentations of symptoms: predominantly result of the ADA. Amendments Act. 36.105(c). inattentive (which was previously known as Based on the Department’s • Revised the discussion of the ‘‘attention deficit disorder); predominantly calculations, total costs to society for hyperactive or impulsive; or a combined ‘‘regarded as prong’’ in §§ 35.108(f) and presentation of inattention and hyperactivity- implementing the revisions to the ADA 36.105(f) to clarify that the burden is on impulsivity. The DSM–5 is the most recent edition Amendments Act range from $31.4 a covered entity to establish that, of a widely-used manual designed to assist million to $47.1 million in the first year. objectively, an impairment is ‘‘transitory clinicians and researchers in assessing mental The first year of costs will be higher disorders. See Diagnostic and Statistical Manual of and minor’’ and therefore not covered Mental Disorders: Fifth Edition DSM–5, American than all subsequent years because the by the ADA. Psychiatric Association, at 59–66 (2013). first year includes the one-time costs of
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training. Note that even the high end of the $100 million mark that signifies an The breakdown of total costs by entity this first-year cost range is well within ‘‘economically significant’’ regulation. is provided in the table below.
TOTAL COSTS FIRST YEAR (2016), PRIMARY ANALYSIS
Cost category Low value Med value High value
Postsecondary Institutions: ANNUAL Total Costs of Processing Additional Requests and Proctoring Extra Exam Time ...... $12.8 $18.0 $23.1 Postsecondary Institutions: ONE–TIME Cost for Additional Training at Institutions ...... 9.9 9.9 9.9 National Exams: ANNUAL Total Costs of Processing Additional Requests and Proctoring Extra Exam Time ...... 6.8 9.5 12.2 National Exams: ONE–TIME Cost for Additional Training at Institutions ...... 1.9 1.9 1.9
Total ...... 31.4 39.3 47.1 Note: Due to rounding, totals may not equate exactly to the product of the inputs provided in the table.
Taking these costs over the next 10 terms at a rate of 7 percent, the total approximately $214.2 million over 10 years and discounting to present value costs of implementing this final rule are years, as shown in the table below.
TOTAL COSTS OVER 10 YEARS, PRIMARY ANALYSIS
Annualized Total discounted value estimate Year dollar Discount rate Period ($ millions) ($ millions) (percent) covered
$214.2 ...... $28.6 2015 7 2016–2025 243.6 ...... 26.3 2015 3 2016–2025
III. Background developed under the Rehabilitation Act That expectation was not fulfilled. The ADA Amendments Act was would be generally applicable to the Public Law 110–325, sec. 2(a)(3). The signed into law by President George W. term ‘‘disability’’ as used in the ADA. holdings of several Supreme Court cases Bush on September 25, 2008, with a H.R. Rep. No. 101–485, pt. 3, at 27 sharply narrowed the broad scope of statutory effective date of January 1, (1990); see also S. Rep. No. 101–116, at protection Congress originally intended 2009. Public Law 110–325, sec. 8. As 21 (1989); H.R. Rep. No. 101–485, pt. 2, under the ADA, thus eliminating with other civil rights laws, individuals at 50 (1990). Congress expected that the protection for many individuals whom seeking protection in court under the definition of ‘‘disability’’ and related Congress intended to protect. Id. sec. anti-discrimination provisions of the terms, such as ‘‘substantially limits’’ 2(a)(4)–(7). For example, in Sutton v. ADA generally must allege and prove and ‘‘major life activity,’’ would be United Air Lines, Inc., 527 U.S. 471, 482 that they are members of the ‘‘protected interpreted under the ADA (1999), the Court ruled that whether an class.’’ Under the ADA, this typically ‘‘consistently with how courts had impairment substantially limits a major means they have to show that they meet applied the definition of a handicapped life activity is to be determined with the statutory definition of being an individual under the Rehabilitation reference to the ameliorative effects of ‘‘individual with a disability.’’ See 154 Act’’—i.e., expansively and in favor of mitigating measures. In Sutton, the Court also adopted a restrictive reading Cong. Rec. S8840–44 (daily ed. Sept. 16, broad coverage. Public Law 110–325, of the meaning of being ‘‘regarded as’’ 2008) (Statement of the Managers); see sec. 2(a)(1)–(8) and (b)(1)–(6); see also disabled under the ADA’s definition of also H.R. Rep. No. 110–730, pt. 2, at 6 154 Cong. Rec. S8840 (daily ed. Sept. ‘‘disability.’’ Id. at 489–94. (2008) (House Committee on the 16, 2008) (Statement of the Managers) Subsequently, in Toyota Motor Judiciary). Congress did not intend, (‘‘When Congress passed the ADA in however, for the threshold question of Manufacturing, Kentucky, Inc. v. 1990, it adopted the functional Williams, 534 U.S. 184 (2002), the Court disability to be used as a means of definition of disability from . . . excluding individuals from coverage. held that the terms ‘‘substantially’’ and Section 504 of the Rehabilitation Act of H.R. Rep. No. 110–730, pt. 2, at 5 (2008). ‘‘major’’ in the definition of ‘‘disability’’ In the original ADA, Congress defined 1973, in part, because after 17 years of ‘‘need to be interpreted strictly to create ‘‘disability’’ as (1) a physical or mental development through case law the a demanding standard for qualifying as impairment that substantially limits one requirements of the definition were well disabled’’ under the ADA, id. at 197, or more major life activities of an understood. Within this framework, and that to be substantially limited in individual; (2) a record of such an with its generous and inclusive performing a major life activity under impairment; or (3) being regarded as definition of disability, courts treated the ADA, ‘‘an individual must have an having such an impairment. 42 U.S.C. the determination of disability as a impairment that prevents or severely 12202(1). Congress patterned this three- threshold issue but focused primarily on restricts the individual from doing part definition of ‘‘disability’’—the whether unlawful discrimination had activities that are of central importance ‘‘actual,’’ ‘‘record of,’’ and ‘‘regarded as’’ occurred.’’); H.R. Rep. No. 110–730, pt. to most people’s daily lives.’’ Id. at 198. prongs—after the definition of 2, at 6 & n.6 (2008) (noting that courts As a result of these Supreme Court ‘‘handicap’’ found in the Rehabilitation had interpreted the Rehabilitation Act decisions, lower courts ruled in Act of 1973. See H.R. Rep. No. 110–730, definition ‘‘broadly to include persons numerous cases that individuals with a pt. 2, at 6 (2008). By doing so, Congress with a wide range of physical and range of substantially limiting intended that the relevant case law mental impairments’’). impairments were not individuals with
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disabilities, and thus not protected by must be considered when evaluating permitted by the terms of this chapter.’’ the ADA. See 154 Cong. Rec. S8840 whether an impairment substantially 42 U.S.C. 12102(4)(A). (daily ed. Sept. 16, 2008) (Statement of limits a major life activity; and the Third, the ADA as amended provides the Managers) (‘‘After the Court’s narrowing of the third, ‘‘regarded as’’ an expanded definition of what may decisions in Sutton that impairments prong of the definition of ‘‘disability’’ in constitute a ‘‘major life activity,’’ within must be considered in their mitigated Sutton and School Board of Nassau the meaning of the ADA. 42 U.S.C. state and in Toyota that there must be County v. Arline, 480 U.S. 273 (1987). 12102(2). The statute provides a non- a demanding standard for qualifying as In addition, the ADA Amendments Act exhaustive list of major life activities disabled, lower courts more often found specifically rejects the EEOC’s and specifically expands the category of that an individual’s impairment did not interpretation of ‘‘substantially limited’’ major life activities to include the constitute a disability. As a result, in too as meaning ‘‘significantly restricted,’’ operation of major bodily functions. Id. many cases, courts would never reach noting that it is too demanding of a Fourth, although the amended statute the question whether discrimination standard. See Public Law 110–325 sec. retains the term ‘‘substantially limits’’ had occurred.’’). Congress concluded 2(b). from the original ADA definition, that these rulings imposed a greater The findings and purposes section of Congress set forth rules of construction degree of limitation and expressed a the ADA Amendments Act ‘‘gives clear applicable to the meaning of higher standard than it had originally guidance to the courts and . . . [is] substantially limited that make clear intended, and unduly precluded many intend[ed] to be applied appropriately that the term must be interpreted far individuals from being covered under and consistently.’’ 154 Cong. Rec. S8841 more broadly than in Toyota. 42 U.S.C. the ADA. Id. at S8840–41 (‘‘Thus, some (daily ed. Sept. 16, 2008) (Statement of 12102(4); see also Public Law 110–325, 18 years later we are faced with a the Managers). The Department has sec. 2(b)(5). Congress was specifically situation in which physical or mental amended its regulations to reflect the concerned that lower courts had applied impairments that would previously ADA Amendments Act, including its Toyota in a way that ‘‘created an have been found to constitute findings and purposes. inappropriately high level of limitation disabilities are not considered necessary to obtain coverage under the IV. Summary of the ADA Amendments ADA.’’ Public Law 110–325, sec. 2(b)(5). disabilities under the Supreme Court’s Act of 2008 narrower standard’’ and ‘‘[t]he resulting Congress sought to convey that ‘‘the court decisions contribute to a legal The ADA Amendments Act restores primary object of attention in cases environment in which individuals must the broad application of the ADA by brought under the ADA should be demonstrate an inappropriately high revising the ADA’s ‘‘Findings and whether entities covered under the ADA degree of functional limitation in order Purposes’’ section, expanding the have complied with their obligations, to be protected from discrimination statutory language regarding the and to convey that the question of under the ADA.’’). meaning and interpretation of the whether an individual’s impairment is a Consequently, Congress amended the definition of ‘‘disability,’’ providing disability under the ADA should not ADA with the Americans with specific rules of construction for demand extensive analysis.’’ Id. Disabilities Act Amendments Act of interpreting that definition, and Fifth, the ADA as amended prohibits 2008. This legislation is the product of expressly superseding the standards consideration of the ameliorative effects extensive bipartisan efforts, and the enunciated by the Supreme Court in of mitigating measures such as culmination of collaboration and Sutton and Toyota and their progeny. medication, assistive technology, or coordination between legislators and First, the ADA Amendments Act reasonable modifications when stakeholders, including representatives deletes two findings that were in the determining whether an impairment of the disability, business, and ADA: (1) That ‘‘some 43,000,000 constitutes a disability. 42 U.S.C. education communities. See 154 Cong. Americans have one or more physical or 12102(4)(E)(i). Congress added this Rec. H8294–96 (daily ed. Sept. 17, 2008) mental disabilities,’’ and (2) that provision to address the Supreme (joint statement of Reps. Steny Hoyer ‘‘individuals with disabilities are a Court’s holdings that the ameliorative and Jim Sensenbrenner); see also 154 discrete and insular minority.’’ 154 effects of mitigating measures must be Cong. Rec. S8840–44 (daily ed. Sept. 16, Cong. Rec. S8840 (daily ed. Sept. 16, considered in determining whether an 2008) (Statement of the Managers). 2008) (Statement of the Managers); see impairment substantially limits a major The ADA Amendments Act modified also Public Law 110–325, sec. 3. As life activity. Public Law 110–325, sec. the ADA by adding a new ‘‘findings and explained in the 2008 Senate Statement 2(b)(2). The ADA as amended also purposes’’ section focusing exclusively of the Managers, ‘‘[t]he [Supreme] Court provides that impairments that are on the restoration of Congress’s intent in treated these findings as limitations on episodic or in remission are disabilities the ADA to broadly interpret the term how it construed other provisions of the if they would substantially limit a major ‘‘disability’’ to ensure expansive ADA. This conclusion had the effect of life activity when active. 42 U.S.C. coverage. These new ADA Amendments interfering with previous judicial 12102(4)(D). Act-specific findings and purposes are precedents holding that, like other civil Sixth, the ADA as amended makes meant to restore a broad scope of rights statutes, the ADA must be clear that, despite confusion on the protection under the ADA by providing construed broadly to effectuate its subject in some court decisions, the clear and enforceable standards that remedial purpose. Deleting these ‘‘regarded as’’ prong of the disability support the mandate to eliminate findings removes this barrier to definition does not require the discrimination against people with construing and applying the definition individual to demonstrate that he or she disabilities. The ‘‘purposes’’ provisions of disability more generously.’’ 154 has, or is perceived to have, an specifically address the Supreme Court Cong. Rec. S8840 (daily ed. Sept. 16, impairment that substantially limits a decisions that narrowed the 2008) (Statement of the Managers). major life activity. 42 U.S.C. 12102(3). interpretation of the term ‘‘disability,’’ Second, the ADA as amended clarifies With this clarifying language, an rejecting the Toyota strict interpretation Congress’s intent that the definition of individual can once again establish of the terms ‘‘major’’ and ‘‘disability’’ ‘‘shall be construed in favor coverage under the law by showing that ‘‘substantially;’’ the Sutton requirement of broad coverage of individuals under he or she has been subjected to an that ameliorative mitigating measures this chapter, to the maximum extent action prohibited under the Act because
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of an actual or perceived physical or identifiable incremental costs that may VII. Regulatory Process Matters mental impairment. The ADA arise as a result of compliance with the A. Executive Order 13563 and 12866— Amendments Act also clarifies that ADA Amendments Act and these Regulatory Planning and Review entities covered by the ADA are not implementing regulations. As explained required to provide reasonable in the regulatory assessment and under This final rule has been drafted in modifications to policies, practices, or Section VII.A below, the Department accordance with Executive Order 13563 of January 18, 2011, 76 FR 3821, procedures for individuals who fall believes that those costs are limited Improving Regulation and Regulatory solely under the regarded as prong. 42 primarily to the context of providing Review, and Executive Order 12866 of U.S.C. 12201(h). reasonable modifications in higher Finally, the ADA as amended gives September 30, 1993, 58 FR 51735, education and testing accommodations the Attorney General explicit authority Regulatory Planning and Review. to issue regulations implementing the by testing entities. Executive Order 13563 directs agencies, definition of ‘‘disability.’’ 42 U.S.C. VI. Relationship of This Regulation to to the extent permitted by law, to 12205a. Revisions to the Equal Employment propose or adopt a regulation only upon a reasoned determination that its V. Background on This Rulemaking Opportunity Commission’s ADA Title I Regulation Implementing the ADA benefits justify its costs; tailor the and Public Comments Received regulation to impose the least burden on Amendments Act of 2008 The Department published its Notice society, consistent with obtaining the of Proposed Rulemaking (NPRM) The EEOC is responsible for regulatory objectives; and, in choosing proposing to amend its title II and title regulations implementing title I of the among alternative regulatory III ADA regulations in the Federal ADA addressing employment approaches, select those approaches that Register on January 30, 2014. 79 FR discrimination based on disability. On maximize net benefits. Executive Order 4839 (Jan. 30, 2014). The comment March 25, 2011, the EEOC published its 13563 recognizes that some benefits and period closed on March 31, 2014. The final rule revising its title I regulation to costs are difficult to quantify and Department received a total of 53 provides that, where appropriate and implement the revisions to the ADA comments on the NPRM from permitted by law, agencies may organizations representing persons with contained in the ADA Amendments Act. 4 consider and discuss qualitatively disabilities, organizations representing 76 FR 16978 (Mar. 25, 2011). values that are difficult or impossible to educational institutions and testing Because the ADA’s definition of quantify, including equity, human entities, individual academics, and ‘‘disability’’ applies to title I as well as dignity, fairness, and distributive other private individuals. The Section- titles II and III of the ADA, the impacts. by-Section analysis in the appendix to Department has made every effort to The Department has determined that this rule addresses the comments ensure that its proposed revisions to the this rule is a ‘‘significant regulatory related to specific regulatory language title II and III regulations are consistent action’’ as defined by Executive Order proposed in the NPRM. with the provisions of the EEOC final 12866, section 3(f). The Department has Many commenters on the NPRM rule. Consistency among the title I, title determined, however, that this rule is noted the value of the regulation to II, and title III rules will promote not an economically significant people with disabilities while a number regulatory action, as it will not have an consistent application of the of commenters on the Department’s annual effect on the economy of $100 requirements of the ADA Amendments NPRM expressed concern that the million or more or adversely affect in a Act, regardless of the Federal agency Department’s regulatory assessment material way the economy, a sector of unduly focused on individuals with responsible for enforcement or the ADA the economy, productivity, competition, learning disabilities who sought title that is enforced. Further, because jobs, the environment, public health or accommodations in testing or most entities subject to either title II or safety, or State, local, or tribal educational situations. These title III are also subject to title I with governments or communities. This rule commenters asserted that the respect to employment, they should has been reviewed by the Office of Department’s discussion of the potential already be familiar with the revisions to Management and Budget (OMB) costs for testing entities or educational the definition of ‘‘disability’’ in the 4- pursuant to Executive Orders 12866 and entities of complying with the ADA year-old EEOC revised regulation. 13563. Amendments Act and this rule could be Differences in language between the title Purpose and Need for Rule and Scope misunderstood to mean that the I rules and the Department’s title II and of Final Regulatory Assessment Department believed the changes in the title III rules are noted in the Section- definition of ‘‘disability’’ did not have by-Section analysis and are generally This rule is necessary in order to an impact on individuals with other attributable to structural differences incorporate into the Department’s ADA types of disabilities. between the title I rule and the title II regulations implementing titles II As discussed in the regulatory and III rules or to the fact that certain (nondiscrimination in State and local assessment, the Department believes sections of the EEOC rule deal with government services) and III that persons with all types of employment-specific issues. (nondiscrimination by public impairments, including, but not limited accommodations and commercial to, those enumerated in §§ 35.108(b) and facilities) the ADA Amendments Act’s 4 On September 23, 2009, the EEOC published its 36.105(b), will benefit from the ability to NPRM in the Federal Register proposing revisions changes to the ADA and to provide establish coverage under the ADA as to the title I definition of ‘‘disability.’’ See 74 FR additional guidance on how to apply amended, and will therefore be able to 48431. The EEOC received and reviewed more than those changes. The ADA Amendments challenge the denial of access to goods, 600 public comments in response to its NRPM. In Act, which took effect on January 1, services, programs, or benefits based on addition, the EEOC and the Department held four 2009, was enacted in response to earlier the existence of a disability. The joint ‘‘Town Hall Listening Sessions’’ throughout Supreme Court decisions that the United States and heard testimony from more Department’s regulatory assessment is than 60 individuals and representatives of the significantly narrowed the application not a statement about the coverage of business/employer industry and the disability of the definition of ‘‘disability’’ under the ADA. Rather, it is a discussion of advocacy community. the ADA. See Sutton v. United Air
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Lines, Inc., 527 U.S. 471 (1999); Toyota examination test takers with ADHD or substantive responses to these Motor Mfg., Kentucky, Inc. v. Williams, learning disabilities. Those comments comments. 534 U.S. 184 (2002). The ADA and the Department’s response are General and Recurring Concerns Amendments Act clarifies the proper discussed below. The Department Expressed in Comments interpretation of the term ‘‘disability’’ in wishes to stress that, although its the ADA and fulfills congressional economic analysis is focused on Many commenters expressed intent to restore the broad scope of the estimating costs for processing requests appreciation for the proposed ADA by making it easier for individuals and providing extra time on exams as a regulation, with several noting that the to establish that they have a disability direct result of the ADA Amendments regulation would offer qualitative and within the meaning of the statute. See Act, the ADA, as amended, extends quantitative benefits. Some of the Public Law 110–325, sec. 2(a)(3)–(7). coverage to individuals with the full quantitative benefits noted by The Act authorizes the Attorney General range of disabilities and affords such commenters were a reduction in to issue regulations under title II and individuals the full range of litigation costs as well as access to title III of the ADA to implement nondiscrimination protections under educational opportunities for persons sections 3 and 4 of the Act, including the ADA.5 The Department is aware that with disabilities that would enhance the rules of construction presented in the accommodation of those individuals employment prospects, productivity, section 3. 42 U.S.C. 12205a. The might entail some economic costs; and future earnings and investments. Department is making several revisions however, it appears that in light of the Qualitative benefits referenced in the to the title II and title III ADA legislative history and the experience of comments included enhanced personal regulations that are based on specific the Department in resolving ADA claims self-worth and dignity, as well as the provisions in the ADA Amendments from 1990 to the present, the above- values of equity, fairness, and full Act. referenced exam costs represent the participation. Other commenters The Department notes that the only category of measurable compliance expressed concern about costs Supreme Court cases limiting the costs that the ADA Amendments Act associated with implementation of the application of the definition of will impose and the Department was regulation. ‘‘disability’’ had the most significant able to assess. While other ADA The Department reviewed a number impact on individuals asserting Amendments Act compliance costs of comments suggesting that it coverage under title I of the ADA with might also ensue, the Department has underestimated the costs that respect to employment. The legislative not been able to specifically identify postsecondary schools or national history of the ADA Amendments Act is and measure these potential costs. The testing entities will incur to comply replete with examples of how Department believes, however, that any with the ADA Amendments Act. individuals with a range of disabilities other potential costs directly resulting Commenters stated that the ADA were unable to successfully challenge from restoration of coverage to Amendments Act will lead to a alleged discriminatory actions by individuals with disabilities who assert significant increase in the number of employers because courts found that their rights under other ADA students seeking accommodations from they did not qualify as individuals with nondiscrimination provisions will likely postsecondary schools, which will lead disabilities under the Supreme Court’s be minimal and have little impact on to substantially increased direct costs narrow standards. See, e.g., S. 154 Cong. the overall results of this analysis. (e.g., the costs of providing additional Rec. S8840–44 (daily ed. Sept. 16, 2008) (Statement of the Managers). With Public Comments on Regulatory exam time and other accommodations to respect to titles II and III, while the Assessment and Department Responses students with disabilities) and indirect statutory amendments required by the costs (e.g., the costs of processing these This section discusses public requests, complaints to the Office for ADA Amendments Act affect persons comments to the Initial RA that with all types of disabilities and across Civil Rights at the U.S. Department of accompanied the NPRM, as well as Education, and lawsuits). Commenters all titles of the ADA, Congress changes made to the estimation of likely anticipated that the ADA Amendments further stated that the Department costs of this rule in response to those overlooked the costs that postsecondary Act’s expanded definition would comments. especially impact persons with learning schools will incur in providing While more than 50 comments were accommodations other than additional disabilities who assert ADA rights in received during the NPRM comment education and testing situations. See exam time, such as tutors, note takers, period, only a few of those directly H.R. Rep. No. 110–730, pt. 1, at 10–11 auxiliary aids, e-books, etc. These addressed the assumptions, data, or (2008); see also 154 Cong. Rec. S8842 commenters suggested that methodology used in the Initial RA. The (daily ed. Sept. 16, 2008). Congress was postsecondary schools will need to hire Department received comments from concerned about the number of additional staff to manage the additional persons with disabilities, organizations individuals with learning disabilities administrative burden that the ADA representing educational institutions who were denied reasonable Amendments Act imposes. and testing entities, individual modifications or testing Those comments and as well as other academics, and other private accommodations (e.g., extra exam time) related comments, are specifically individuals. The preamble to this final because covered entities claimed these addressed below. But, as a threshold individuals did not have disabilities rule provides the primary forum for matter, the Department believes that the covered by the ADA. concerns predicated on the assumption In the NPRM, the Department 5 A number of commenters on the NPRM of a significant rise in students seeking expressed concern that the Department’s focus on requested public comments on whether the economic impact of the ADA Amendments Act accommodations due to changes the changes made by the ADA with respect to individuals with learning brought about by the ADA Amendments Amendments Act to titles II and III and disabilities and in the area of education and testing Act are overstated. One of the primary that are addressed in the proposed rule might lead the public to think that the Department purposes of the ADA Amendments Act did not believe the ADA Amendments Act would would have benefits or costs in areas benefit persons with other disabilities or in the full was to restore ADA coverage to a subset other than additional time for range of situations and contexts covered by titles II of individuals with disabilities who lost postsecondary students and national and III of the ADA. ADA protection as a result of a series of
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Supreme Court decisions dating back to Most of the students affected by the indicate that institutions other than 1999. ADA Amendments Act are students postsecondary institutions and testing While the Department recognizes that whose impairments did not clearly meet entities will incur any significant there has been an increase in the the definition of ‘‘disability’’ under the economic impact as a result of number of students with disabilities ADA after the series of Supreme Court accommodating individuals now requesting accommodations at decisions beginning in 1999 reduced the covered under the ADA after passage of postsecondary institutions, much of this scope of that coverage. For instance, the ADA Amendments Act. Even after increase is likely not attributable to the under the narrowed scope of coverage, conducting further research, the passage of the ADA Amendments Act. some individuals with learning Department was unable to identify any Commenters and existing data suggest disabilities or ADHD may have been accommodations that would result in that, for the most part, increases in the denied accommodations or failed to compliance costs that could be number of students with disabilities request them in the belief that such specifically attributable to the ADA attending college and seeking requests would be denied. As a result, Amendments Act other than those accommodations are likely related to the the most likely impact of the ADA identified and measured in this following factors: Amendments Act is seen in the number analysis—i.e., accommodations for extra • There are more diagnoses of of students with disabilities eligible to time on exams. While the Department disabilities in children overall since request and receive accommodations in anticipates that other individuals with 1997; 6 testing situations. There are different disabilities will benefit from the ADA • More students are attending college types of accommodations requested in Amendments Act, no specific subsets of generally; 7 testing situations, but requests for individuals with disabilities or specific • Other laws such as the Individuals additional exam time appear to be the accommodations were identified. with Disabilities Education Act (IDEA) type of accommodation most likely to Accordingly, it appears that the and section 504 are causing students have a significant, measurable cost economic impact of ADA Amendments with disabilities to be identified more impact. Other types of accommodations Act compliance for entities other than widely and at a younger age; 8 requested in testing situations are postsecondary schools and testing • The stigma of identifying as a expected to incur few to no additional entities will not significantly affect the person with a disability appears to have costs as a result of the ADA overall economic impact of the rule, and diminished since the passage of the Amendments Act and this rule. For thus those costs are not analyzed here. ADA in 1990; instance, requests for accommodations One commenter cited the 2013–2014 • Diagnoses of autism spectrum such as the use of assistive technology Institutional Disability Access disorders among children have or the need for alternative text formats Management Strategic Plan at Cornell increased significantly since 1997, were the types of accommodations that University 11 as an example of the kind perhaps as a result of improved would have been granted prior to the of careful planning done by diagnostic tools and protocols; 9 and passage of the ADA Amendments Act postsecondary institutions to address • Postsecondary schools have because students with sensory the needs of students with disabilities as improved their ability to accommodate disabilities needing these types of a basis for determining that the costs of students with disabilities, thus accommodations would have been implementing the ADA Amendments encouraging more students to seek such covered by the ADA even under the Act will be very high. This document accommodations, and empowering narrower scope of coverage arising from focuses almost exclusively on initiatives students with disabilities to enroll in the application of the Supreme Court’s taken in furtherance of ADA compliance college and remain enrolled there.10 decisions in Toyota and Sutton. As a generally, rather than compliance with result, those types of accommodations the ADA Amendments Act specifically. 6 Coleen A. Boyle, et al., Trends in the Prevalence cannot be directly attributed to the ADA Further, this document discloses that of Developmental Disabilities in US Children, 1997– Amendments Act. In addition, other Cornell University annually updates its 2008, 127 Pediatrics 1034 (2011), available at http://pediatrics.aappublications.org/content/ types of accommodations such as plans and policies toward individuals pediatrics/early/2011/05/19/peds.2010- adjustments to the testing environment with disabilities. Nothing in this 2989.full.pdf (last visited April 22, 2016); see also (e.g., preferential seating or alternative document indicates that Cornell Matt Krupnick, Colleges respond to growing ranks locations) or the ability to have snacks University is absorbing high costs as a of learning disabled, The Hechinger Report (Feb. 13, 2014), available at http://hechingerreport.org/ or drinks would result in minimal or no result of such ongoing updates, or that colleges-respond-to-growing-ranks-of-learning- costs. Therefore, the Department’s the ADA Amendments Act has disabled/ (last visited Feb. 3, 2016). examination of the costs of this rule is presented Cornell University with an 7 U.S. Department of Education, National Center confined to those accommodations that unusually high burden, over and above for Education Statistics, Fast Facts: Enrollment, individuals at postsecondary available at http://nces.ed.gov/fastfacts/ the ordinary obligations that the ADA display.asp?id=98 (last visited Feb. 3, 2016). institutions or taking national itself imposes. It is true that this 8 See Stephen B. Thomas, College Students and examinations are most likely to request document reflects careful, Disability Law, 33 J. Special Ed. 248 (2000), as a result of the ADA Amendments Act comprehensive, and possibly costly available at http://www.ldonline.org/article/6082/ and that are most likely to incur planning on the behalf of students with (last visited Apr. 22, 2016). measurable costs—extra time on tests 9 Centers for Disease Control and Prevention, disabilities, but the expense inherent in Prevalence of Autism Spectrum Disorder Among and examinations. such planning is attributable to the Children Aged 8 Years—Autism and Developmental One commenter, however, asserted overall requirements of the ADA itself, Disabilities Monitoring Network, 11 Sites, United that costs should be estimated for rather than the implementation of the States, 2010, MMWR 2014; 63 (SS–02), available at http://www.cdc.gov/mmwr/pdf/ss/ss6302.pdf (last entities other than postsecondary ADA Amendments Act. visited April 22, 2016). institutions and testing entities, such as 10 See Justin Pope, Students with Autism, Other elementary and secondary schools, 11 Cornell University—Disability Information, Disabilities Have More College Options Than Ever courthouses, etc. Certain concerns Institutional Disability Access Management Before, Huff Post Impact, available at http:// Strategic Plan for Cornell University, July 1, 2013– www.huffingtonpost.com/2013/09/16/autism- related to elementary and secondary June 30, 2014, available at http:// college-options_n_3934583.html (Sept. 16, 2013) schools are addressed below, but the disability.cornell.edu/docs/2013-2014-disability- (last visited Feb. 3, 2016). Department found no direct evidence to strategic-plan.pdf (last visited Feb. 3, 2016).
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Comments Regarding the ADA and coverage set forth in Sutton and Toyota. to $5,000 in such compliance costs Related Laws As a result, their policies and since 2009 or if they expected to incur Many of the commenters’ points procedures may require few, if any, such costs going forward, some indicia regarding increased costs appear to updates to conform to the ADA of these costs would be readily apply to concerns about the costs of Amendments Act and the revised apparent. regulations. The Department has found Because no relevant supporting complying with the ADA generally and no evidence to suggest that the changes information regarding the commenters’ not to costs related to expanded required by the ADA Amendments Act estimates was provided, the Department coverage due to the ADA Amendments have placed or will place a significant conducted additional independent Act. It is true that in some cases the burden upon the ongoing processes of research and interviewed costs of accommodating some students evaluating and updating policies that representatives at two postsecondary with more severe mobility and sensory already exist at postsecondary schools institutions to determine whether any disabilities could be significant, but or with national testing entities. additional formal or informal training these students were clearly covered Nevertheless, the Department has had been needed to understand the even under the restrictive standards set attempted in this Final RA to quantify implications of the ADA Amendments forth by Sutton and Toyota, and the cost of training staff members and Act (and make adjustments to existing accordingly, such costs cannot be updating policies as a result of the policies and procedures to conform to attributed to the implementation of the changes that the ADA Amendments Act the Act’s requirements). One of those ADA Amendments Act. One commenter final rule may require. two institutions stated that no expressed a concern that there has been Some commenters argued that the additional training had been needed. an increase in requests for ‘‘exotic or Department’s estimate of a one-time cost The second institution said that untrained animals as service or of $500 per institution to change additional training had been provided emotional support animals’’ in student policies and procedures in compliance during meetings with staff. housing provided by postsecondary with the ADA Amendments Act was too Approximately two hours per staff institutions. The Department notes that low. Instead, one commenter proposed member (i.e., two hours per meeting) neither ‘‘exotic animals’’ nor ‘‘emotional an estimated one-time cost of $2,500 per had been dedicated to this training. support animals’’ qualify as service institution, and another commenter Approximately two part-time staff and animals under the existing regulations suggested an estimated one-time cost of six graduate students (working part implementing titles II and III of the ADA $5,000 per institution for the first year’s time) received this training. In addition, and thus, any costs related to allowing training costs. The underlying data and the staff member providing the training such animals are not due to the methodology to support these estimates had to attend a one-day conference to application of the requirements of this were not provided by these commenters. receive the information to pass along to rule.12 And, similar to the observation The Department has found no data to the other staff. The Department noted above, the vast majority of substantiate the claims that the cost of conducted research to determine the students who use service animals as changing existing policies and training costs of attending such a conference and defined under the ADA have disabilities procedures to comply with the ADA receiving training on the changes to the that would have been covered prior to Amendments Act will be $2,500 or law resulting from the ADA passage of the ADA Amendments Act, $5,000 per institution. The commenters Amendments Act. Based on this even under the Supreme Court’s more proposing those costs did not provide independent research and feedback narrow application of the definition of any detailed evidence or arguments in from representatives of two ‘‘disability.’’ So, although such costs support of such costs, and the postsecondary institutions, the may be measurable, they cannot fairly Department’s research found no Department increased its estimate for be attributed to the implementation of evidence to indicate that any one-time training costs from the ADA Amendments Act. institutions have incurred training or approximately $500 to $1,371 (see policy revision costs of that magnitude Comments Regarding the Costs for the below for greater details on how the since the ADA Amendments Act Adjustment of Existing Policies $1,371 was derived). became effective in 2009. The The Department acknowledges that commenter suggesting a $5,000 cost Comments Regarding the Costs of postsecondary schools and national cites to one institution’s disability Additional Staff Time for the testing entities will incur some costs to access plan to suggest some of the types Administration of the Rule update their written policies and of costs that might be incurred. The Some commenters argued that the training procedures to ensure that the referenced document, however, does not rule will lead to a significant increase in definition of ‘‘disability’’ is interpreted provide specific dollar figures and is not postsecondary institution accessibility in accordance with the requirements of ADA Amendments Act specific. support staff time devoted to disability the ADA Amendments Act, but has Therefore, the Department does not accommodation issues, perhaps even found no evidence to indicate that such believe that the commenter’s projected requiring postsecondary institutions to costs would be high. The Department cost increases are correct because, as hire additional personnel. One also notes that even prior to passage of discussed above, the programmatic commenter representing higher the ADA Amendments Act, many concerns identified in this document educational institutions estimated that postsecondary schools had policies in pertained to ADA compliance as a each affected institution would be place that were broader and more whole, but not with changes to the ADA required to hire one new full-time staff comprehensive than would have been created by the ADA Amendments Act member, at $40,000 per year, to address required under the more restrictive specifically. The Department increased student requests. This acknowledges that the absence of commenter cited a study that indicated 12 As in other types of housing environments, evidence of such costs, however, is not that the mean number of staff who assist students who wish to have emotional support necessarily conclusive that some costs students with disabilities is four per animals in housing provided by their place of education may make those requests under the Fair do not or will not exist. Nevertheless, campus. The Department questions the Housing Act, 42 U.S.C. 3601 et seq., and not the the Department believes that, had commenter’s estimate that each affected ADA. postsecondary schools incurred $2,500 institution would have to increase their
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staff by one full-time staff person, or impact of the ADA Amendments Act conclusion, the Department has approximately 25 percent of the mean will lead to an increase in litigation and nonetheless conducted a sensitivity entire staff, to address the incremental disputes. The ADA Amendments Act analysis to assess these potential costs changes created by the ADA clarified several contentious or with the assumption that testing entities Amendments Act. The general increase uncertain aspects of the ADA, and thus were not already providing an in accommodation requests is likely may have decreased the overall amount additional testing day to accommodate attributable to a number of other factors of ADA litigation by reducing certain individuals with disabilities. not related to the ADA Amendments ambiguities in the law. However, Because an additional testing day for Act, including higher enrollment of assessing the impact of covered entities’ these examinations was likely already students with disabilities. While there failures to comply (or alleged failures to provided prior to passage of the ADA will likely be an incremental increase in comply) with the requirements of the Amendments Act, the Department the number of testing accommodations ADA, as amended, and the legal continues to believe that the costs of requested and granted as a direct result challenges that may result from accommodating any additional students of the ADA Amendments Act, this compliance failures, are not properly who are now seeking additional exam incremental increase is unlikely to be within the ambit of the Final RA, nor do time as a direct result of the ADA the driving factor for hiring additional we have any relevant information that Amendments Act will be minimal. As a staff. would assist in an analysis of such result, the sensitivity analysis the Similarly, some commenters argued issues even if it they were appropriate Department has conducted likely that the Department needed to to include in the Final RA. overestimates these potential costs. incorporate estimates of the additional Further information on the potential Comments Regarding the Computation administrative time needed to review range of these costs can be found below. and administer additional requests for of Costs for Additional Examinations testing accommodations for both and Testing Comments Regarding the Estimate of postsecondary and national testing One commenter stated that the ADHD Prevalence Among entities. To address these concerns, the Department placed too much emphasis Postsecondary Students Department contacted several on the cost of proctor supervision when Several commenters questioned the universities and testing entities, but assessing the cost of extra exam time in Department’s approach of reducing the received responses from only one school postsecondary institutions. The portion of students with ADHD who and one testing entity, and those commenter posited that many tests are would be impacted by the ADA responses were inconclusive. The administered electronically; Amendments Act. In the Initial RA, the postsecondary school said that there has accordingly, the costs of those tests are Department had assumed based on some been no noticeable increase in appropriately based on the cost of ‘‘seat available research that 30 percent of applications for accommodations since time’’ and not the cost of proctor those who self-identify as having ADHD the passage of the ADA Amendments supervision. Unfortunately, no as their primary disability would not Act, but the testing entity stated that it commenter provided a description of need additional testing time because has detected a large increase in requests what the additional costs per student they would not meet the clinical for additional testing time since the might be in such circumstances, nor did definition of the disability. One passage of the ADA Amendments Act. any commenter explain how such costs commenter raised concern about In light of the uncertainty regarding any could be computed. The Department presenting a specific percentage of potential additional staff time needed to contacted several postsecondary students with ADHD who would not review additional requests for institutions and testing entities for meet that clinical definition, because accommodations, the Department has approximations of seat time costs, but that number might inadvertently made several assumptions based on did not receive any relevant become a benchmark for postsecondary research and discussions with subject information. institutions and national testing entities matter experts and impacted entities so Two commenters noted that for some to deny accommodations to a similar as to incorporate estimated costs for this long national examinations, additional percentage of applicants requesting item. This information is presented testing time would necessitate the additional exam time because of their further below. provision of an additional testing day ADHD. The Department did not intend that would increase costs substantially. for this percentage to establish a Comments Regarding the Costs of This potential cost was not estimated in benchmark. Covered entities should Additional Disputes the Initial RA because research continue to evaluate requests for Some commenters argued that the indicated that prior to the passage of the additional exam time by all individuals ADA Amendments Act would lead to ADA Amendments Act, national with disabilities on an individualized increased litigation and internal examination institutions were already basis. In direct response to these disputes against institutions, as the accommodating individuals who concerns, the Department has decided scope of potential litigants would required additional time because of not to reduce the number of individuals expand due to the increase in disabilities already explicitly covered by with ADHD who could now receive individuals covered by the ADA as a the ADA. As a result, testing entities testing accommodations as a direct result of the passage of the ADA were already providing an additional result of the ADA Amendments Act. Amendments Act. Other commenters testing day where necessary. Therefore, disagreed, stating that the new any individuals who would now request Comments Regarding the Economic regulation would reduce the volume of additional time on national exams Impact of the Rule on Industries complaints and litigation and streamline lasting six hours or more as a direct A commenter representing outstanding complaints and litigation result of the ADA Amendments Act institutions of higher education stated due to increased consistency and would be accommodated alongside that the rule would have a significant predictability in judicial interpretation those individuals who would have been impact on higher education as an and executive enforcement. The covered prior to the ADA Amendments industry, such that the rule should be Department does not agree with the Act, and any potential costs would considered ‘‘economically significant.’’ commenters who asserted that the likely be minimal. Despite this For the reasons indicated throughout
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the Final RA, however, the Department under the IDEA, in elementary and extremely limited. Students with ADHD does not believe that this commenter’s secondary schools. An association and learning disabilities who already points were persuasive. Based on the focusing on children with learning are covered by section 504 and, in many Department’s own research and disabilities noted that students who instances, the IDEA as well, are entitled evaluation, it is convinced that the cost manage their disabilities well often find to needed special education, related of ADA Amendments Act compliance that school districts challenge their aids and services, modifications or will be far less than $100 million dollars IDEA claims of disability, but that such auxiliary aids or services under those in any given year. claims may meet with more success statutes. Further, prior to filing suit The commenter stated that the under the ADA or section 504 of the under the ADA, any student that is Department erred in its analysis by Rehabilitation Act. One commenter, covered under both the ADA and the focusing primarily on college students whose comments were endorsed by IDEA must exhaust administrative with learning disabilities or ADHD and several other groups, noted that remedies under the IDEA if seeking a did not factor in potential costs related particular subsets of children may be remedy that is available under that to students with other impairments eligible for benefits under the ADA but statute. Thus, while the ADA is critical including depression, schizophrenia, not under the IDEA. These include to ensuring that students with obsessive compulsive disorder, students with episodic conditions, disabilities have a full and equal traumatic brain injuries, post-traumatic mitigated conditions, and conditions opportunity to participate in and benefit stress disorder, visual impairments not such as diabetes and seizure from public education, when viewed in rising to the level of blindness, anxiety, impairments that may require concert with the protections already autism, food allergies, or transitory maintenance support, such as diet or afforded by section 504 and the IDEA, impairments. Prior to passage of the medications. A national association of the economic impact of implementing ADA Amendments Act, higher kindergarten through twelfth-grade the ADA Amendments Act in K–12 educational institutions already were educators indicated that, increasingly, schools will be minimal. The incurring costs to accommodate in its view, some parents are more likely Department also notes that none of these students with the above-referenced to seek school-related modifications for commenters provided any data impairments that constituted their child under the ADA, rather than demonstrating that elementary and disabilities. These costs are not the IDEA. This commenter suggested, secondary schools have incurred attributable to this rulemaking and thus accordingly, that ADA litigation would additional costs due to the passage of not analyzed as such. For the relatively increase once parents become aware of the ADA Amendments Act more than small number of students with the the application of a broader definition of six years ago. above-referenced disabilities who might ‘‘disability’’ due to the ADA Comments Regarding Possible not have been covered prior to the Amendments Act. passage of the ADA Amendments Act, The Department recognizes that the Fraudulent Claims of Disability the Department was unable to definition of ‘‘disability’’ under the A number of commenters stated that specifically identify or measure any IDEA is different than that under the the rule might encourage some people potential costs that postsecondary ADA.13 While many students will be without learning disabilities to claim institutions would incur in covered by both statutes, some students that they have learning disabilities, so accommodating these students. covered by the ADA will not be eligible that they can take advantage of extra The commenter also stated that the for special education services under the exam time. The Department has not Department’s Initial RA should have IDEA; however, such students are identified any study suggesting that the considered the costs of academic covered by section 504 of the release of this rule—more than six years accommodations other than extended Rehabilitation Act and are entitled to a after the effective date of the ADA testing time, such as ‘‘note takers, tutors, ‘‘free appropriate public education’’ Amendments Act—likely will motivate technology-based auxiliary aids, (FAPE) under the Department of a spike in false claims for students electronic versions of text-books and Education’s section 504 regulation. The seeking extra time on examinations. class materials, and other Department acknowledges commenters’ While individuals with learning accommodations and aids,’’ as well as views that some parents may assert disabilities previously denied ‘‘significant costs resulting from rights for their elementary, middle, and accommodations may be motivated to accommodation requests outside the high school students under the ADA seek recognition of their disabilities classroom context, such as those due to the expanded definition of under this rule, because it may offer an involving residence halls, food services ‘‘disability.’’ However, the Department improved opportunity for consideration or athletics.’’ The Department notes believes that the overall number of of their unmet needs, the Department that, as with reasonable modifications additional requests for reasonable does not believe that individuals who and testing accommodations required modifications by elementary and might feign disabilities in pursuit of prior to the ADA Amendments Act, the secondary students that can be extra time would modify their behavior accommodations or auxiliary aids or attributed to the ADA Amendments Act as a result of this rule; to the contrary, services described by the commenter will be small and that any resulting the motivation and opportunity to feign were being provided before the passage economic impact is likely to be such disabilities would have existed of the ADA Amendments Act and will prior to the passage of the ADA not entail new costs specifically 13 Under the IDEA, a ‘‘child with a disability’’ is Amendments Act. The Department attributable to the ADA Amendments a child ‘‘with intellectual disabilities, hearing acknowledges that there will always be Act. impairments (including deafness), speech or some individuals who seek to take language impairments, visual impairments advantage of rules that extend benefits Comments Regarding ADA/IDEA (including blindness), serious emotional disturbance . . . orthopedic impairments, autism, to particular classes of individuals. Concerns traumatic brain injury, other health impairments, or However, the Department has Several commenters addressed the specific learning disabilities [and] who, by reason determined that the costs of such thereof, needs special education and related possibility that the expanded definition services.’’ 20 U.S.C. 1401(3). The IDEA regulation fraudulent behavior cannot readily be of ‘‘disability’’ could result in more elaborates on each disability category used in the computed. It appears that there is no cases arising under the ADA, rather than statute. See 34 CFR 300.8. generally accepted metric for
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determining how many claims of Final Results of the Primary Analysis • Annual cost of proctoring disability are fraudulent, or how the additional time on exams as a direct This section presents the calculations cost of such fraudulent activity should result of the ADA Amendments Act. used to estimate the total costs resulting be computed. And, the Department To calculate the annual costs to all from the revisions to the title II and title postsecondary institutions for found no evidence to indicate that the III regulations to incorporate the rate of fraudulent claims of disability processing these additional changes made by the ADA Amendments accommodation requests and proctoring has increased since the implementation Act. Costs are first presented for of the ADA Amendments Act in 2009. additional exam time as a direct result postsecondary institutions and then for of the ADA Amendments Act, the It should be emphasized that national testing entities. For a more individuals seeking accommodations for potential number of students who could detailed explanation of the request and receive these their disabilities in testing situations Department’s methodology and data under the ADA will still undergo an accommodations needs to be calculated. used to calculate these costs, please Calculations for the three costs listed individualized assessment to determine refer to relevant sections in the Final above plus the number of students who whether they have disabilities covered RA. The Final RA is available on are eligible to receive and likely to by the statute. Extended exam time is an Department’s Web site at www.ada.gov. request accommodations for extra exam accepted reasonable modification or As explained above, total costs to time as a direct result of the ADA testing accommodation under the ADA postsecondary institutions will include Amendments Act are presented below. for persons whose disabilities inhibit three components: The annual one-time training cost for their ability to complete timed tests. • One-time cost of training staff on all postsecondary institutions is Because the Department is not able to relevant impact of ADA Amendments presented in Table 1 below. The identify or measure an increase in Act; methodology used to calculate this cost fraudulent claims associated with this • Annual cost of processing is explained further in Section 2.1 of the rule, those potential costs are not additional accommodation requests for Final RA, and the sources for the data reflected in the economic analysis. extra exam time made as a direct result used are provided in Section 3.1.1 of the of the ADA Amendments Act; and Final RA.
TABLE 1—CALCULATION OF ONE-TIME TRAINING COSTS FOR POSTSECONDARY INSTITUTIONS
Variable Value
Number of Postsecondary Institutions ...... 7,234 One-Time Cost of Training on the Impacts of ADA Amendments Act per Institution ...... 1,371 One-Time Training Cost for Postsecondary Institutions ...... 9,917,633 Note: Due to rounding, totals may not equate exactly to the product of the inputs provided in the table.
The number of additional eligible Amendments Act is calculated in Tables sources for the data used are provided students likely to request and receive 2 and 3 below. The methodology used in Section 3.1.2 of the Final RA. extra time on exams at postsecondary for this calculation is explained further institutions as a direct result of the ADA in Section 2.2 of the Final RA, and the
TABLE 2—CALCULATION OF NUMBER OF STUDENTS WHO ARE ELIGIBLE TO RECEIVE ACCOMMODATIONS FOR EXTRA EXAM TIME AT POSTSECONDARY INSTITUTIONS [First year]
Row # Variable Value Source
1 ...... Total Number of Postsecondary Students ...... 20,486,000 See Table 9 of the Final RA. 2 ...... Percentage of Postsecondary Students with a Learning Disability or ADHD ...... 2.96% See Table 11 of the Final RA. 3 ...... Total Postsecondary Students with a Learning Disability or ADHD ...... 606,386 Calculation (Multiply Row 1 and Row 2). 4 ...... Percentage of Students with Learning Disabilities or ADHD Already Receiving Accom- 51.1% See Table 12 of the Final modations for Extra Exam Time Prior to Passage of the ADA Amendments Act. RA. 5 ...... Total Number of Students with Learning Disabilities or ADHD who were Requesting Ac- 309,863 Calculation (Multiply Row 3 commodations for Extra Exam Time Prior to the ADA Amendments Act. and Row 4). 6 ...... Percentage of Students with Learning Disabilities or ADHD Not Receiving Accommoda- 48.9% See Table 12 of the Final tions for Extra Exam Time Prior to Passage ADA Amendments Act. RA. 7 ...... Total Eligible Students who Could Potentially Request and Receive Accommodations for 296,523 Calculation Extra Exam Time as a Direct Result of the ADA Amendments Act. (Multiply Row 3 and Row 6). Note: Due to rounding, totals may not equate exactly to the product of the inputs provided in the table.
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TABLE 3—CALCULATION OF NUMBER OF STUDENTS WHO ARE ELIGIBLE TO RECEIVE AND LIKELY TO REQUEST ACCOMMODATIONS FOR EXTRA EXAM TIME AT POSTSECONDARY INSTITUTIONS [First year]
Row # Variable Low value Med value High value Source
1 ...... Total Eligible Students who Could Potentially Request and 296,523 296,523 296,523 See Table 2 above. Receive Accommodations for Extra Exam Time as a Direct Result of the ADA Amendments Act. 2 ...... Percentage of Eligible Students Who Were Not Previously 50% 70% 90% See Table 13 of the Final Receiving Accommodations for Extra Exam Time Prior to RA. Passage of the ADA Amendments Act Who are Now Likely to Request and Receive this Accommodation. 3 ...... Number of Students who are Eligible to Receive and Likely to 148,261 207,566 266,870 Calculation (Multiply Row 1 Request Accommodations for Extra Exam Time as a Direct and Row 2). Result of the ADA Amendments Act. Note: Due to rounding, totals may not equate exactly to the product of the inputs provided in the table.
Table 4 below presents the postsecondary institutions that are not Amendments Act revisions. The calculations of the annual cost to being made as a direct result of the ADA methodology used to calculate this cost postsecondary institutions for Amendments Act. Costs depend on the is explained further in Section 2.3 of the processing new accommodation number of students who will now be Final RA, and the sources for the data requests for extra exam time. These eligible to request and receive an used are provided in Section 3.1.3 of the requests are in addition to the ones accommodation for extra time on an Final RA. currently received and processed by exam as a direct result of the ADA
TABLE 4—CALCULATION OF ANNUAL COST TO POSTSECONDARY INSTITUTIONS FOR PROCESSING ADDITIONAL ACCOMMODATION REQUESTS FOR EXTRA EXAM TIME [First year]
Variable Low value Med value High value
Number of Students who are Eligible to Receive and Likely to Request Accommodations for Extra Exam Time ...... 148,261 207,566 266,870 Number of Staff Hours to Process each Accommodation Request ...... 2 2 2 Total Staff Hours to Process New Requests ...... 296,523 415,132 533,741 Staff Hourly Wage Rate for Processing Accommodation Requests ...... $24.91 $24.91 $24.91 Annual Cost to Postsecondary Institutions for Processing Additional Accommodation Re- quests for Extra Exam Time ...... $7,387,118 $10,341,966 $13,296,813 Note: Due to rounding, totals may not equate exactly to the product of the inputs provided in the table.
Tables 5 and 6 calculate the annual result of the ADA Amendments Act. data used are provided in Section 3.1.4 costs to postsecondary institutions for The methodology used to calculate this of the Final RA. proctoring additional time on exams cost is explained further in Section 2.4 requested by eligible students as a direct of the Final RA, and the sources for the
TABLE 5—CALCULATION OF ANNUAL COST TO POSTSECONDARY INSTITUTIONS FOR PROCTORING EXTRA TIME ON EXAMS, PER STUDENT [First year]
Variable Value
Average Length of an Exam at a Postsecondary Institution in Hours ...... 1.5 Average Additional Time Requested, as a Percentage of Total Exam Time ...... 75% Average Amount of Extra Time per Exam in Hours ...... 1.13 Average Number of Exams per Class ...... 3 Average Number of Classes per Year ...... 8 Average Number of Exams per Student ...... 24 Average Annual Additional Exam Time per Student in Hours ...... 27 Average Proctor to Student Ratio ...... 0.11 Average Hourly Wage of Exam Proctor ...... $12.90 Annual Cost for Proctoring Additional Time on Exams per Student ...... $36.67 Note: Due to rounding, totals may not equate exactly to the product of the inputs provided in the table.
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TABLE 6—TOTAL ANNUAL COST TO POSTSECONDARY INSTITUTIONS FOR PROCTORING EXTRA TIME ON EXAMS [First year]
Variable Low Med High
Annual Cost for Proctoring Additional Time on Exams per Student ...... $36.67 $36.67 $36.67 Number of Students who are Eligible to Receive and Likely to Request Accommodations for Extra Exam Time ...... 148,261 207,566 266,870 Annual Cost to Postsecondary Institutions for Proctoring Extra Time on Exams ...... $5,437,419 $7,612,387 $9,787,355 Note: Due to rounding, totals may not equate exactly to the product of the inputs provided in the table.
Just as with postsecondary • Annual cost of proctoring and likely to request accommodations of institutions, the costs to national testing additional time on exams as a direct extra exam time as a direct result of the entities from the revisions to the ADA result of the ADA Amendments Act. ADA Amendments Act are presented Amendments Act will include three The annual costs of processing below. components: additional accommodation requests and The annual one-time training cost for • One-time cost of training staff on proctoring the extra exam time depends all national testing entities is presented relevant impact of ADA Amendments on the number of test takers who will in Table 7 below. The methodology Act; request accommodations for extra exam used to calculate this cost is explained • Annual cost of processing time as a direct result of the ADA further in Section 2.1 of the Final RA, additional accommodation requests for Amendments Act. Calculations for the and the sources for the data used are extra exam time made as a direct result three costs listed above plus the number provided in Section 3.2.1 of the Final of the ADA Amendments Act; and of test takers who are eligible to receive RA.
TABLE 7—CALCULATION OF ONE-TIME TRAINING COSTS FOR NATIONAL TESTING ENTITIES
Variable Value
Number of National Testing Entities ...... 1,397 One-Time Cost of Training on the Impacts of ADA Amendments Act per Institution ...... $1,371 One-Time Training Cost for National Testing Entities ...... $1,915,252 Note: Due to rounding, totals may not equate exactly to the product of the inputs provided in the table.
The number of test takers who are calculated in Tables 8 and 9 below. The 2.2 of the Final RA, and the sources for now eligible to receive and likely to methodology used to calculate this the data used are provided in Section request extra time on national exams is number is explained further in Section 3.2.2 of the Final RA.
TABLE 8—CALCULATION OF NUMBER OF TEST TAKERS WHO ARE ELIGIBLE TO RECEIVE ACCOMMODATIONS FOR EXTRA EXAM TIME FROM NATIONAL TESTING ENTITIES [First year]
Row # Variable Value Source
1 ...... Total Number of Test Takers ...... 10,450,539 See Table 23 of the Final RA. 2 ...... Percentage of Test Takers with a Learning Disability or ADHD * ...... 2.96% See Table 11 of the Final RA. 3 ...... Total Test Takers with a Learning Disability or ADHD ...... 309,336 Calculation (Multiply Row 1 and Row 2). 4 ...... Percentage of Test Takers with Learning Disabilities or ADHD Already Receiving Accom- 51.1% See Table 12 of the Final modations for Extra Exam Time Prior to Passage of the ADA Amendments Act.* RA. 5 ...... Total Number of Test Takers with Learning Disabilities or ADHD who were Requesting 158,071 Calculation (Multiply Row 3 Accommodations for Extra Exam Time Prior to the ADA Amendments Act. and Row 4). 6 ...... Percentage of Test Takers with Learning Disabilities or ADHD Not Receiving Accom- 48.9% See Table 12 of the Final modations for Extra Exam Time Prior to Passage ADA Amendments Act.* RA. 7 ...... Total Eligible Test Takers who Could Potentially Request and Receive Accommodations 151,265 Calculation (Multiply Row 3 for Extra Exam Time as a Direct Result of the ADA Amendments Act. and Row 6). Note: Due to rounding, totals may not equate exactly to the product of the inputs provided in the table. * For these assumptions, the Final RA assumes the same values for national test takers as found for postsecondary students, since no specific data for national examinations was found and many national exams are designed for students or recent graduates.
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TABLE 9—CALCULATION OF NUMBER OF TEST TAKERS WHO ARE ELIGIBLE TO RECEIVE AND LIKELY TO REQUEST ACCOMMODATIONS FOR EXTRA EXAM TIME FROM NATIONAL TESTING ENTITIES
Row # Variable Low Med High Source
1 ...... Total Eligible Test Takers who Could Potentially Request and 151,265 151,265 151,265 See Table 8 above. Receive Accommodations for Extra Exam Time as a Direct Result of the ADA Amendments Act. 2 ...... Percentage of Eligible Test Takers Who Were Not Previously 50% 70% 90% See Table 13 of the Final Receiving Accommodations for Extra Exam Time Prior to RA. Passage of the ADA Amendments Act Who are Now Likely to Request and Receive this Accommodation. 3 ...... Number of Test Takers who are Eligible to Receive and Likely 75,633 105,886 136,139 Calculation (Multiply Row 1 to Request Accommodations for Extra Exam Time as a Di- and Row 2). rect Result of the ADA Amendments Act. Note: Due to rounding, totals may not equate exactly to the product of the inputs provided in the table.
Table 10 illustrates the calculations of time made as a direct result of the ADA and the sources for the data used are the annual cost to national testing Amendments Act. The methodology provided in Section 3.2.3 of the Final entities for processing additional used to calculate this cost is explained RA. accommodation requests for extra exam further in Section 2.3 of the Final RA,
TABLE 10—CALCULATION OF ANNUAL COST TO NATIONAL TESTING ENTITIES FOR PROCESSING ADDITIONAL ACCOMMODATION REQUESTS FOR EXTRA EXAM TIME [First year]
Variable Low value Med value High value
Number of Test Takers who are Eligible to Receive and Likely to Request Accommodations for Extra Exam Time ...... 75,633 105,886 136,139 Number of Staff Hours to Process each Accommodation Request ...... 2 2 2 Total Staff Hours to Process Additional Accommodation Requests for Extra Exam Time 151,265 211,771 272,278 Staff Hourly Wage Rate for Processing Accommodation Requests ...... $24.91 $24.91 $24.91 Annual Cost to National Testing Entities for Processing Additional Accommodation Re- quests for Extra Exam Time ...... $3,768,396 $5,275,755 $6,783,113 Note: Due to rounding, totals may not equate exactly to the product of the inputs provided in the table.
Finally, Tables 11 and 12 calculate occupied by the test taker for the a proxy for the cost. The methodology the annual costs to national testing additional hours of testing. However, used to calculate this cost is explained entities for allowing test takers to because the seat cost per test taker was further in Section 2.4 of the Final RA, receive additional time on exams. not available for this Final RA analysis, and the sources for the data used are Again, the cost here may be calculated the additional time spent by a test provided in Section 3.2.4 of the Final as the opportunity cost of the seat proctor to oversee the exam is used as RA.
TABLE 11—CALCULATION OF ANNUAL COST TO NATIONAL TESTING ENTITIES FOR PROCTORING EXTRA TIME ON EXAMS, PER TEST TAKER [First year]
Variable Value
Average Length of a National Exam in Hours ...... 4.11 Average Extra Time Requested, as a Percentage of Total Exam Time ...... 75% Average Amount of Extra Time per Exam in Hours ...... 3.09 Average Number of Exams per Test Taker per Year ...... 1 Average Annual Extra Exam Time per Test Taker in Hours ...... 3.09 Average Proctor-to-Test-Taker Ratio ...... 1 Average Hourly Wage of Exam Proctor ...... $12.90 Cost to National Testing Entities for Proctoring Extra Time on Exams per Test Taker ...... $39.81 Note: Due to rounding, totals may not equate exactly to the product of the inputs provided in the table.
TABLE 12—TOTAL ANNUAL COST TO NATIONAL TESTING ENTITIES FOR PROCTORING EXTRA TIME ON EXAMS [First year]
Variable Low value Med value High value
Cost to National Testing Entities for Proctoring Extra Time on Exams per Test Taker ...... $39.81 $39.81 $39.81 Number of Test Takers who are Eligible to Receive and Likely to Request Accommodations for Extra Exam Time each year ...... 75,633 105,886 136,139
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TABLE 12—TOTAL ANNUAL COST TO NATIONAL TESTING ENTITIES FOR PROCTORING EXTRA TIME ON EXAMS—Continued [First year]
Variable Low value Med value High value
Annual Cost to National Testing Entities for Proctoring Extra Time on Exams ...... $3,011,096 $4,215,534 $5,419,973 Note: Due to rounding, totals may not equate exactly to the product of the inputs provided in the table.
Based on the calculations provided million and $47.1 million in the first high end of this first-year cost range is above, total costs to society for year. The first year of costs will be well below the $100 million mark that implementing the ADA Amendments higher than all subsequent years signifies an ‘‘economically significant’’ Act revisions into the title II and title III because the first year includes the one- regulation. The breakdown of total costs regulations will range between $31.4 time cost of training. Note that even the by entity is provided in Table 13 below.
TABLE 13—TOTAL COSTS FIRST YEAR (2016) IN PRIMARY ANALYSIS, NON-DISCOUNTED [$ millions]
Cost category Low value Med value High value
Postsecondary Institutions: ANNUAL Total Costs of Processing Additional Requests and Proctoring Extra Exam Time ...... $12.8 $18.0 $23.1 Postsecondary Institutions: ONE–TIME Cost for Additional Training at Institutions ...... 9.9 9.9 9.9 National Exams: ANNUAL Total Costs of Processing Additional Requests and Proctoring Extra Exam Time ...... 6.8 9.5 12.2 National Exams: ONE–TIME Cost for Additional Training at Institutions ...... 1.9 1.9 1.9
Total ...... 31.4 39.3 47.1 Note: Due to rounding, totals may not equate exactly to the sum of the inputs provided in the table.
Taking these costs over the next 10 of implementing the ADA Amendments million over 10 years, as shown in Table years and discounting to present value Act revisions is approximately $214.2 14 below. terms at a rate of 7 percent, the total cost
TABLE 14—TOTAL COSTS OVER 10 YEARS, PRIMARY ANALYSIS
Annualized Total discounted value estimate Year dollar Discount rate Period ($ millions) ($ millions) (percent) covered
$214.2 ...... $28.6 2015 7 2016–2025 $243.6 ...... 26.3 2015 3 2016–2025
Potential Additional Costs to National administer and be scheduled for one test booklets are often reprinted to allow Testing Entities day may require an additional day of one set of questions for one day of testing if the test taker seeks more time testing, and another set for the extra day The ADA Amendments Act revisions as an accommodation. To quantify the of testing. This form of printing prevents will allow eligible individuals with total costs of providing an additional test takers from going home and looking disabilities to receive additional time on day of testing for those individuals who up the answers for the next set of exams, both for course-work exams at would not previously have received this questions. postsecondary institutions and additional time, prior to the passage of Room Rental Cost standardized national examinations. the ADA Amendments Act, the Some national examinations are long following two costs are quantified: Exams are delivered in different and can last up to eight hours per test. settings depending on the type of Thus, when test takers request Exam Revision Costs national exam. Some exams are additional time on these longer exams, While it appears that many national delivered at testing centers where such requests will inevitably push the testing entities do not revise the content different types of exams are exam into an additional day. of exams that span an additional day, administered at once in the same room. As commenters pointed out in the exam format and materials can be In this case, the cost of an extra day of response to the Initial RA, there are affected by such an extension. For testing could be captured by the seat costs associated with providing exams instance, computer-based exams are cost per test taker. Other exams are on an additional day. While there is no programmed to span a certain amount of delivered to test takers exclusively data to predict which exams will extend time, allowing for timed break periods taking that exam, and those exams are to an additional day, especially given throughout. When more time is often administered in rooms rented out that specific accommodations are provided to take the exam, the exam at a university, hotel, or other building. determined individually, this Final RA must be reprogrammed to span the new This cost could be captured by the room assumes that exams that normally amount of time, with planned breaks for rental cost. The Final RA takes a would take six hours or more to the test taker. For paper-based exams, conservative approach, using the room
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rental cost to approximate the cost of extra testing day to eligible test takers Amendments Act revisions. For further delivering an exam over an additional will likely range between $2.7 and $4.8 information on the methodology, data, day, as this is the larger of the two costs. million per year. Table 15 adds this into and assumptions used to analyze these Based on the calculations provided in the total costs in the first year to potential additional costs for national Sections 4.2.1 and 4.2.2 of the Final RA, approximate the range of total costs to testing entities, please refer to Section the total additional costs of providing an society from implementing the ADA 4.2 of the Final RA.
TABLE 15—TOTAL COSTS FIRST YEAR, PLUS POTENTIAL ADDITIONAL COSTS FOR ADDITIONAL DAY OF TESTING, NON- DISCOUNTED [$ millions]
Cost category Low value Med value High value
Postsecondary Institutions: ANNUAL Total Costs of Processing Additional Requests and Proctoring Extra Exam Time ...... $12.8 $18.0 $23.1 Postsecondary Institution: ONE–TIME Cost for Additional Training at Institutions ...... 9.9 9.9 9.9 National Exams: ANNUAL Total Costs of Processing Additional Requests and Proctoring Extra Exam Time ...... 6.8 9.5 12.2 National Exams: ONE–TIME Cost for Additional Training at Institutions ...... 1.9 1.9 1.9 National Exams: ANNUAL Potential Additional Costs for Exams that Run over onto an Addi- tional Day ...... 2.7 3.8 4.8
Total ...... 34.1 43.1 52.0 Note: Due to rounding, totals may not equate exactly to the sum of the inputs provided in the table.
Benefits Discussion college degrees over those who do not improvements in access for individuals The Department believes that the have degrees. Estimates of this lifetime with disabilities, the ADA Amendments enactment of the ADA Amendments Act earnings vary, with some studies Act is expected to generate benefits millions of Americans, and the estimating an earning differential psychological benefits for covered benefits to those individuals are non- ranging from approximately $300,000 to individuals, including reduced stress 14 quantifiable but nonetheless significant. $1 million. In addition, some number and an increased sense of personal The Department determined, however, of students may be able to earn a degree dignity and self-worth, as more that there was a group of individuals in a higher-paying field than they individuals with disabilities are able to with disabilities who would be able to otherwise could, and yet other students successfully complete tests and exams receive benefits in the form of increased would get the same degree, but perhaps and more accurately demonstrate their access to accommodations in testing finish their studies faster or more academic skills and abilities. Some from postsecondary institutions and successfully (i.e., higher grades) than individuals will now be more likely to national testing entities, and that these otherwise would be the case. All of pursue a favored career path or benefits would be associated with these outcomes would be expected to educational pursuit, which will in turn specific costs to those institutions and lead to greater lifetime productivity and lead to greater personal satisfaction. entities, which are analyzed above. earnings. Additional benefits to society arise With respect to specific benefits, in In addition to these quantitative from improved testing accessibility. For the first year, our analysis estimates that benefits, this rule will have significant instance, if some persons with approximately 148,261 to 266,870 non-quantifiable benefits to individuals disabilities are able to increase their postsecondary students will take with disabilities who, prior to the earnings, they may need less public advantage of accommodations for extra passage of the ADA Amendments Act support—either direct financial support exam time that they otherwise would and this rule, were denied the or support from other programs or not have received but for this rule. Over opportunity for equal access to an services. This, in turn, would lead to 10 years, approximately 1.6 million to education or to become licensed in their cross-sector benefits from resource 2.8 million students will benefit. An chosen professions because of their savings arising from reduced social additional 802,196 to 1.4 million inability to receive needed testing service agency outlays. Others, such as national exam test takers would benefit accommodations. As with all other family members of individuals with over that same 10 years (assuming that disabilities, may also benefit from 14 See Mark Schneider, How Much Is That reduced financial and psychological people take an exam one time only). Bachelor’s Degree Really Worth?: The Million Dollar Some number of these individuals Misunderstanding, American Enterprise Institute, pressure due to the greater could be expected to earn a degree or AEI Online (May 2009), available at http:// independence and earnings of the license that they otherwise would not www.aei.org/article/education/higher-education/ family member whose disability is now how-much-is-that-bachelors-degree-really-worth/ covered by the ADA under the revised have as a result of the testing (last visited Feb. 3, 2016); U.S. Census Bureau, accommodations they are now eligible Work-Life earnings by Field of Degree and definition of ‘‘disability.’’ to receive as a direct result of the ADA Occupation for People with a Bachelor’s Degree: In addition to the discrete group of Amendments Act. The Department was 2011, American Community Survey Briefs (Oct. individuals with learning disabilities 2012), available at http://www.census.gov/prod/ unable to find robust data to estimate 2012pubs/acsbr11-04.pdf (last visited Feb. 3, 2016); and ADHD who will benefit from the the number of students who would Anthony P. Carnevale et al., The College Payoff– changes made to the definition of receive a bachelor’s degree or licenses Education, Occupations, Lifetime Earnings, ‘‘disability,’’ there is a class of after this rule goes into effect that would Georgetown University Center on Education and the individuals who will now fall within Workforce (2011), available at https:// not otherwise have received one. cew.georgetown.edu/wp-content/uploads/2014/11/ the nondiscrimination protections of the However, extensive research has shown collegepayoff-complete.pdf (last visited April 22, ADA if they are refused access to or notably higher earnings for those with 2016). participation in the facilities, programs,
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services, or activities of covered entities. entities have been required to comply postsecondary institutions. Therefore, The benefits to these individuals are with the Act since that date and thus the Department estimates that 2,556 significant, but unquantifiable. The should be familiar with the small postsecondary institutions would Department believes (as did Congress requirements of the law. Second, the be impacted by this rule. when it enacted the ADA) that there is rule does not include reporting The overall costs of this rule for inherent value that results from greater requirements and imposes no new postsecondary institutions were accessibility for all Americans. recordkeeping requirements. Third, as calculated based on the number of Economists use the term ‘‘existence shown above, the only title II and title entities and number of postsecondary value’’ to refer to the benefit that III entities that would be significantly students affected. The cost of processing individuals derive from the plain affected by the proposed changes to the additional accommodation requests for existence of a good, service, or ADA regulations are national testing resource—in this case, the increased entities and postsecondary institutions. extra exam time and the cost of accessibility to postsecondary degrees The type of accommodations that most additional time spent proctoring exams and specialized licenses that would likely will be requested and required by depend on the number of students. This arise from greater access to testing those whose coverage has been clarified methodology assumes that per-student accommodations or the increased under titles II and III of ADA costs are roughly the same for accessibility to covered entities’ Amendments Act will be additional institutions of differing sizes. Because facilities, programs, services, or time in testing situations. While many larger entities have more students on activities as a result of the ADA of these national testing or average than smaller ones, the Amendments Act. This value can also postsecondary institutions are small Department used the proportion of the be described as the value that people businesses or small governmental industry sub-group’s revenues for small both with and without disabilities entities, the costs associated with and large entities as a proxy for the derive from the guarantees of equal additional testing time are minimal; number of students. Thus, using protection and nondiscrimination. In therefore, the Department believes the receipts for Junior Colleges (NAICS other words, people value living in a economic impact of this rule will be 6112) and Colleges, Universities, and country that guarantees the rights of neither significant for these small Professional Schools (NAICS 6113) as a persons with disabilities, whether or not entities nor disproportionate relative to proxy for number of students, small they themselves are directly or the costs for larger entities. postsecondary institutions are estimated indirectly affected by disabilities. There The Department estimates that to bear 4 percent of the processing and can be a number of reasons why approximately 7,234 postsecondary proctoring costs for providing additional individuals might value accessibility institutions could be impacted based on exam time for that industry sub-group— even if they do not require it now and data from the U.S. Department of or approximately $726,534 of the $17.95 do not ever anticipate needing it in the Education National Center for Education million first-year costs. Additionally, future. These reasons include bequest Statistics.15 The Department used data postsecondary institutions are expected motives and concern for relatives or from the U.S. Census Bureau 16 from to incur one-time costs for additional friends who require accessibility. People 2012 for Junior Colleges (NAICS 17 6112) training of $1,371 per entity (see Tables in society value equity, fairness, and and Colleges, Universities, and 6–8 in the Final RA). In total, small human dignity, even if they cannot Professional Schools (NAICS 6113) to postsecondary institutions would incur express these values in terms of money. estimate the proportion of those entities $4.2 million in costs in the first year, These are the exact values that agencies that would meet the Small Business which would average approximately are directed to consider in Executive Administration’s criteria for small $1,655 for each of the 2,556 small Order 13563. business or small governmental entity.18 postsecondary institutions. The average As shown in Table 18 and Table 19 B. Regulatory Flexibility Act annual revenue for each these small below, small postsecondary institutions postsecondary institutions is $501,600. In the NPRM, the Department stated are estimated to account for The cost is 0.33 percent of their that, based on its analysis, it ‘‘can certify approximately 35.3 percent of all revenue. Therefore, the costs will not be that the rule will not have a significant substantial for these small entities. economic impact on a substantial 15 U.S. Department of Education, National Center number of small entities.’’ The for Education Statistics (2015). Digest of Education In comparison to the number of small Department sought public comment on Statistics, 2013 (NCES 2015–011), Chapter 2. 2011– postsecondary entities, there are 2012 academic year—Number of Title IV approximately 4,678 postsecondary this proposed certification and its institutions, by level and control of institution and underlying analysis, including the costs state or other jurisdiction, available at https:// institutions (64.7 percent of the 7,234) to small entities, but received no public nces.ed.gov/fastfacts/display.asp?id=84 (last visited that would be considered larger entities, comments on these issues. The Attorney Feb.3, 2016). and these larger entities would incur General has again reviewed this 16 U.S. Census Bureau, Number of Firms, Number $23.6 million in costs during the first of Establishments, Employment, Annual Payroll, year, which would average out to regulation in accordance with the and Estimated Receipts by Enterprise Receipt Sizes Regulatory Flexibility Act, 5 U.S.C. for the United States, NAICS Sectors: 2012, approximately $5,053 per large 605(b), and by approving it hereby available at http://www.census.gov/econ/susb/ (last postsecondary institution during the certifies that it will not have a visited Feb. 3, 2016). first year. This $5,053 per large significant economic impact on a 17 North American Industry Classification postsecondary institution during the substantial number of small entities for System. first year is approximately 3.1 times 18 U.S. Small Business Administration, Table of the reasons discussed more fully below. Small Business Size Standards, available at https:// higher than the cost that would be First, the ADA Amendments Act took www.sba.gov/content/small-business-size-standards incurred by small postsecondary effect on January 1, 2009; all covered (last visited April 22, 2016). institutions during that same time.
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TABLE 16—FIRM, ESTABLISHMENT, AND RECEIPTS DATA FOR JUNIOR COLLEGES (NAICS 6112) IN 2012
Est. receipts Firms Establishments ($000,000)
All Junior Colleges ...... 464 953 8,449 Small Junior Colleges (estimated)* ...... 378 427 1,723 Small Junior Colleges as a Percentage of All Junior Colleges ...... 81.5% 44.8% 20.4% * SBA small business standard is $20.5 million; small business totals here include those with receipts under $25 million. This is due to data being reported in size categories that do not exactly match industry small business classifications: i.e. from $10 million to $14.99 million, and from $15 million to $19.99 million; and from $20 million to $24.99 million, and from $25 million to $29.99 million. Source: Calculated from data provided by the U.S. Census Bureau, Statistics of U.S. Businesses. See SBA Office of Advocacy and U.S. Cen- sus Bureau, Statistics of U.S. Businesses, Table 2—Number of firms, establishment, receipts, employment, and payroll by firm size (in receipts) and industry, 2012, available at https://www.sba.gov/advocacy/firm-size-data (last visited April 22, 2016).
TABLE 17—FIRM, ESTABLISHMENT, AND RECEIPTS DATA FOR COLLEGES, UNIVERSITIES, AND PROFESSIONAL SCHOOLS (NAICS 6113) IN 2012
Est. receipts Firms Establishments ($000,000)
All Colleges, Universities, and Professional Schools ...... 2,282 4,329 222,854 Small Colleges, Universities, and Professional Schools (estimated) * ...... 1,369 1,439 7,637 Small Colleges, Universities, and Professional Schools as a Percentage of All Col- leges, Universities, and Professional Schools ...... 60.0% 33.2% 3.4% * SBA small business standard is $27.5 million; small business totals here include those with receipts under $30 million. This is due to data being reported in size categories that do not exactly match industry small business classifications: i.e. from $10 million to $14.99 million, and from $15 million to $19.99 million; and from $20 million to $24.99 million, and from $25 million to $29.99 million. Source: Calculated from data provided by the U.S. Census Bureau, Statistics of U.S. Businesses. See SBA Office of Advocacy and U.S. Cen- sus Bureau, Statistics of U.S. Businesses, Table 2—Number of firms, establishment, receipts, employment, and payroll by firm size (in receipts) and industry, 2012, available at https://www.sba.gov/advocacy/firm-size-data (last visited April 22, 2016).
TABLE 18—FIRM, ESTABLISHMENT, AND RECEIPTS DATA FOR BOTH JUNIOR COLLEGES (NAICS 6112) AND SMALL COLLEGES, UNIVERSITIES, AND PROFESSIONAL SCHOOLS (NAICS 6113), COMBINED, IN 2012
Est. receipts Firms Establishments ($000,000)
All Junior Colleges, and Colleges, Universities, and Professional Schools ...... 2,746 5,282 231,303 Small Junior Colleges, and Colleges, Universities, and Professional Schools (esti- mated) * ...... 1,747 1,866 9,360 Small Junior Colleges, and Colleges, Universities, and Professional Schools as a Per- centage of All Junior Colleges, and Colleges, Universities, and Professional Schools ...... 63.6% 35.3% 4.0% * SBA small business standard for Junior Colleges is $20.5 million; small business totals here include Junior Colleges with receipts under $25 million. This is due to data being reported in size categories that do not exactly match industry small business classifications: i.e. from $10 million to $14.99 million, and from $15 million to $19.99 million; and from $20 million to $24.99 million, and from $25 million to $29.99 million. The SBA small business standard for Colleges, Universities, and Professional Schools is $27.5 million; small business totals here include Colleges, Univer- sities, and Professional Schools with receipts under $30 million. This is due to data being reported in size categories that do not exactly match industry small business classifications: i.e. from $10 million to $14.99 million, and from $15 million to $19.99 million; and from $20 million to $24.99 million, and from $25 million to $29.99 million. Source: Calculated from data provided by the U.S. Census Bureau, Statistics of U.S. Businesses. See SBA Office of Advocacy and U.S. Cen- sus Bureau, Statistics of U.S. Businesses, Table 2—Number of firms, establishment, receipts, employment, and payroll by firm size (in receipts) and industry, 2012, available at https://www.sba.gov/advocacy/firm-size-data (last visited April 22, 2016).
TABLE 19—ESTIMATED SMALL ENTITY ESTABLISHMENTS FOR POSTSECONDARY INSTITUTIONS IN 2011–12
Total Postsecondary Establishments (All Firms/Entities); Academic year 2010–2011 * ...... 7,234 Percent Small Entities (2012) ** ...... 35.3% Total Impacted Small Entity Establishments *** ...... 2,556 * U.S. Department of Education, National Center for Education Statistics, (2015), Digest of Education Statistics, 2013 (NCES 2015–011), avail- able at https://nces.ed.gov/fastfacts/display.asp?id=84 (last visited Feb. 3, 2016). ** Derived from Tables 16–18 above. *** Estimated using percentage of small establishments for NAICS sectors 6112 and 6113.
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In addition to postsecondary Test Development and Evaluation entities would be impacted by this rule, institutions, some national testing Services (NAICS 6117102) 19 to estimate irrespective of size. Small entity entities would also be impacted. The the number of affected entities. establishments are estimated to account Department used data on Educational Approximately 1,397 national testing for 923 (66.1 percent) of these.
TABLE 20—FIRM AND RECEIPTS DATA FOR NATIONAL TESTING ENTITIES IN 2007: EDUCATIONAL TEST DEVELOPMENT AND EVALUATION SERVICES (NAICS 6117102)
Est. receipts Firms Establishments ($000,000)
Small, Medium, and Large Entities * ...... 748 1,144 2,843 Small Entities ** ...... 734 756 704 Percentage Small Entities ...... 98.1% 66.1% 24.8% Total Entities ...... 1,000 1,397 2,907 Estimated Total Small Entities *** ...... 981 923 720 * Includes only those entities which were categorized by annual revenue in the available data. ** Data is reported in size categories that do not exactly match industry small business classifications: i.e. from $5 million to $9.99 million, and from $10 million to $24.99 million. SBA small business standard is $15.0 million for all Educational Support Services; small business totals here include those with receipts under $25 million. *** Applying the estimated percentage of small entities to the total number of entities. Source: Calculated from data provided by the U.S. Census Bureau. See U.S. Census Bureau, 2007 Economic Census, Educational Services: Subject Series—Estab and Firm Size: Receipts/Revenue Size of Establishments for the United States: 2007 (EC0761SSSZ4), available at http:// factfinder.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ECN_2007_US_61SSSZ1&prodType=tableE: (last visited Feb. 3, 2016).
Small entity establishments in the incurred by small national testing center an agency shall not promulgate any Educational Test Development and establishments during that same time. regulation that has federalism Evaluation Services industry group As explained above, the Department implications, that imposes substantial account for 24.8 percent of that estimates that approximately 2,556 direct compliance costs on State and industry’s receipts. If receipts are used small postsecondary establishments and local governments, that is not required as a proxy for number of test takers in 923 small national testing by statute, or that preempts State law, a manner similar to that described above establishments would be impacted by unless the agency meets the for postsecondary institutions, then this rule, for a total of approximately consultation and funding requirements small national testing entities can be 3,479 small business establishments. of section 6 of the Executive Order. expected to bear 24.8 percent of the The estimates were based on average Because this rule does not have industry’s $9.49 million first-year costs estimates for all entities, irrespective of federalism implications as defined in of processing additional accommodation size. The Department notes that the the Executive Order, does not impose requests for extra exam time and average first-year cost estimates direct compliance costs on State and additional time spent proctoring presented above for small entities are local governments, is required by exams—or approximately $2.35 million. higher than the first-year cost estimates statute, and does not preempt State law Additionally, national testing entities presented in the NPRM because the within the meaning of the Executive are expected to incur a fixed cost for Department’s estimates for the initial Order, the Department has concluded additional training of $1,371 per entity. training costs (which will be incurred that compliance with the requirements Thus, for the approximately 923 small during the first year) are now higher of section 6 is not necessary. based on public comment and further national testing entities, total costs in D. Plain Language Instructions the first year are estimated to average research and analysis conducted by the $3,918 each. Average revenue for these Department. However, the overall costs of this rule for small entities over the The Department makes every effort to entities is $780,264. The cost is 0.50 10-year period are lower because the promote clarity and transparency in its percent of their revenue. Therefore, the Department’s final overall cost estimates rulemaking. In any regulation, there is a costs will not be substantial for these in the Final RA are lower as a result of tension between drafting language that small entities. refinements made to the analysis in is simple and straightforward and In comparison to the number of small response to public comment and based drafting language that gives full effect to testing entities, approximately 474 on further research conducted by the issues of legal interpretation. The national testing center establishments Department. Department operates a toll-free ADA (33.9 percent of the 1,397) would be Based on the above analysis, the Information Line (800) 514–0301 considered larger entities, and they Attorney General can certify that the (voice); (800) 514–0383 (TTY) that the would incur $7.79 million in costs rule will not have a significant public is welcome to call to obtain during the first year, which would economic impact on a substantial assistance in understanding anything in average out to approximately $16,440 number of small entities. this final rule. per large national testing center E. Paperwork Reduction Act establishment during the first year. This C. Executive Order 13132: Federalism $16,440 per large national testing center Executive Order 13132 of August 4, This final rule does not contain any establishment is approximately 4.2 1999, Federalism, directs that, to the new or revised ‘‘collection[s] of times as high as the cost that would be extent practicable and permitted by law, information’’ as defined by the
19 Using data reported by the Census Bureau for 2007, the most recent year for which information on NAICS 6117102 was available.
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Paperwork Reduction Act of 1995. 44 have complied with their obligations (b)(1) Physical or mental impairment U.S.C. 3501 et seq. and whether discrimination has means: occurred, not whether the individual (i) Any physiological disorder or F. Unfunded Mandates Reform Act meets the definition of ‘‘disability.’’ The condition, cosmetic disfigurement, or Section 4(2) of the Unfunded question of whether an individual meets anatomical loss affecting one or more Mandates Reform Act of 1995, 2 U.S.C. the definition of ‘‘disability’’ under this body systems, such as: neurological, 1503(2), excludes from coverage under part should not demand extensive musculoskeletal, special sense organs, that Act any proposed or final Federal analysis. respiratory (including speech organs), regulation that ‘‘establishes or enforces ■ 3. Amend § 35.104 by revising the cardiovascular, reproductive, digestive, any statutory rights that prohibit definition of ‘‘Disability’’ to read as genitourinary, immune, circulatory, discrimination on the basis of race, follows: hemic, lymphatic, skin, and endocrine; color, religion, sex, national origin, age, or handicap, or disability.’’ Accordingly, § 35.104 Definitions. (ii) Any mental or psychological this rulemaking is not subject to the * * * * * disorder such as intellectual disability, provisions of the Unfunded Mandates Disability. The definition of disability organic brain syndrome, emotional or Reform Act. can be found at § 35.108. mental illness, and specific learning List of Subjects for 28 CFR Parts 35 and * * * * * disability. 36 ■ 4. Add § 35.108 to subpart A to read (2) Physical or mental impairment as follows: includes, but is not limited to, Administrative practice and contagious and noncontagious diseases procedure, Buildings and facilities, § 35.108 Definition of ‘‘disability.’’ and conditions such as the following: Business and industry, Civil rights, (a)(1) Disability means, with respect to orthopedic, visual, speech, and hearing Communications equipment, an individual: impairments, and cerebral palsy, Individuals with disabilities, Reporting (i) A physical or mental impairment epilepsy, muscular dystrophy, multiple and recordkeeping requirements, State that substantially limits one or more of sclerosis, cancer, heart disease, diabetes, and local governments. the major life activities of such intellectual disability, emotional illness, By the authority vested in me as individual; dyslexia and other specific learning Attorney General by law, including 28 (ii) A record of such an impairment; disabilities, Attention Deficit U.S.C. 509 and 510, 42 U.S.C. 12134, or Hyperactivity Disorder, Human 12186, and 12205a, and Public Law (iii) Being regarded as having such an Immunodeficiency Virus infection 110–325, 122 Stat. 3553 (2008), parts 35 impairment as described in paragraph (whether symptomatic or and 36 of title 28 of the Code of Federal (f) of this section. asymptomatic), tuberculosis, drug Regulations are amended as follows: (2) Rules of construction. (i) The addiction, and alcoholism. definition of ‘‘disability’’ shall be (3) Physical or mental impairment PART 35—NONDISCRIMINATION ON construed broadly in favor of expansive does not include homosexuality or THE BASIS OF DISABILITY IN STATE coverage, to the maximum extent bisexuality. AND LOCAL GOVERNMENT SERVICES permitted by the terms of the ADA. (c)(1) Major life activities include, but (ii) An individual may establish ■ are not limited to: 1. Revise the authority citation for part coverage under any one or more of the (i) Caring for oneself, performing 35 to read as follows: three prongs of the definition of manual tasks, seeing, hearing, eating, Authority: 5 U.S.C. 301; 28 U.S.C. 509, ‘‘disability’’ in paragraph (a)(1) of this sleeping, walking, standing, sitting, 510; 42 U.S.C. 12134, 12131, and 12205a. section, the ‘‘actual disability’’ prong in reaching, lifting, bending, speaking, ■ 2. Revise § 35.101 to read as follows: paragraph (a)(1)(i) of this section, the breathing, learning, reading, ‘‘record of’’ prong in paragraph (a)(1)(ii) concentrating, thinking, writing, § 35.101 Purpose and broad coverage. of this section, or the ‘‘regarded as’’ communicating, interacting with others, (a) Purpose. The purpose of this part prong in paragraph (a)(1)(iii) of this and working; and is to implement subtitle A of title II of section. (ii) The operation of a major bodily the Americans with Disabilities Act of (iii) Where an individual is not function, such as the functions of the 1990 (42 U.S.C. 12131–12134), as challenging a public entity’s failure to immune system, special sense organs amended by the ADA Amendments Act provide reasonable modifications under and skin, normal cell growth, and of 2008 (ADA Amendments Act) (Pub. § 35.130(b)(7), it is generally digestive, genitourinary, bowel, bladder, L. 110–325, 122 Stat. 3553 (2008)), unnecessary to proceed under the neurological, brain, respiratory, which prohibits discrimination on the ‘‘actual disability’’ or ‘‘record of’’ circulatory, cardiovascular, endocrine, basis of disability by public entities. prongs, which require a showing of an hemic, lymphatic, musculoskeletal, and (b) Broad coverage. The primary impairment that substantially limits a reproductive systems. The operation of purpose of the ADA Amendments Act is major life activity or a record of such an a major bodily function includes the to make it easier for people with impairment. In these cases, the operation of an individual organ within disabilities to obtain protection under evaluation of coverage can be made a body system. the ADA. Consistent with the ADA solely under the ‘‘regarded as’’ prong of (2) Rules of construction. (i) In Amendments Act’s purpose of the definition of ‘‘disability,’’ which determining whether an impairment reinstating a broad scope of protection does not require a showing of an substantially limits a major life activity, under the ADA, the definition of impairment that substantially limits a the term major shall not be interpreted ‘‘disability’’ in this part shall be major life activity or a record of such an strictly to create a demanding standard. construed broadly in favor of expansive impairment. An individual may choose, (ii) Whether an activity is a major life coverage to the maximum extent however, to proceed under the ‘‘actual activity is not determined by reference permitted by the terms of the ADA. The disability’’ or ‘‘record of’’ prong to whether it is of central importance to primary object of attention in cases regardless of whether the individual is daily life. brought under the ADA should be challenging a public entity’s failure to (d) Substantially limits—(1) Rules of whether entities covered under the ADA provide reasonable modifications. construction. The following rules of
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construction apply when determining regard to the ameliorative effects of the use of a wheelchair substantially whether an impairment substantially mitigating measures. However, the limit musculoskeletal function; limits an individual in a major life ameliorative effects of ordinary (E) Autism substantially limits brain activity. eyeglasses or contact lenses shall be function; (i) The term ‘‘substantially limits’’ considered in determining whether an (F) Cancer substantially limits normal shall be construed broadly in favor of impairment substantially limits a major cell growth; expansive coverage, to the maximum life activity. Ordinary eyeglasses or (G) Cerebral palsy substantially limits extent permitted by the terms of the contact lenses are lenses that are brain function; ADA. ‘‘Substantially limits’’ is not intended to fully correct visual acuity or (H) Diabetes substantially limits meant to be a demanding standard. to eliminate refractive error. endocrine function; (ii) The primary object of attention in (ix) The six-month ‘‘transitory’’ part of (I) Epilepsy, muscular dystrophy, and cases brought under title II of the ADA the ‘‘transitory and minor’’ exception in multiple sclerosis each substantially should be whether public entities have paragraph (f)(2) of this section does not limits neurological function; (J) Human Immunodeficiency Virus complied with their obligations and apply to the ‘‘actual disability’’ or (HIV) infection substantially limits whether discrimination has occurred, ‘‘record of’’ prongs of the definition of immune function; and not the extent to which an individual’s ‘‘disability.’’ The effects of an impairment substantially limits a major (K) Major depressive disorder, bipolar impairment lasting or expected to last disorder, post-traumatic stress disorder, life activity. Accordingly, the threshold less than six months can be issue of whether an impairment traumatic brain injury, obsessive substantially limiting within the compulsive disorder, and schizophrenia substantially limits a major life activity meaning of this section for establishing should not demand extensive analysis. each substantially limits brain function. an actual disability or a record of a (3) Condition, manner, or duration. (i) (iii) An impairment that substantially disability. limits one major life activity does not At all times taking into account the (2) Predictable assessments. (i) The need to limit other major life activities principles set forth in the rules of principles set forth in the rules of in order to be considered a substantially construction, in determining whether an construction in this section are intended limiting impairment. individual is substantially limited in a to provide for more generous coverage (iv) An impairment that is episodic or major life activity, it may be useful in and application of the ADA’s in remission is a disability if it would appropriate cases to consider, as prohibition on discrimination through a substantially limit a major life activity compared to most people in the general framework that is predictable, when active. population, the conditions under which (v) An impairment is a disability consistent, and workable for all the individual performs the major life within the meaning of this part if it individuals and entities with rights and activity; the manner in which the substantially limits the ability of an responsibilities under the ADA. individual performs the major life individual to perform a major life (ii) Applying these principles, the activity; or the duration of time it takes activity as compared to most people in individualized assessment of some the individual to perform the major life the general population. An impairment types of impairments will, in virtually activity, or for which the individual can does not need to prevent, or all cases, result in a determination of perform the major life activity. significantly or severely restrict, the coverage under paragraph (a)(1)(i) of (ii) Consideration of facts such as individual from performing a major life this section (the ‘‘actual disability’’ condition, manner, or duration may activity in order to be considered prong) or paragraph (a)(1)(ii) of this include, among other things, substantially limiting. Nonetheless, not section (the ‘‘record of’’ prong). Given consideration of the difficulty, effort or every impairment will constitute a their inherent nature, these types of time required to perform a major life disability within the meaning of this impairments will, as a factual matter, activity; pain experienced when section. virtually always be found to impose a performing a major life activity; the (vi) The determination of whether an substantial limitation on a major life length of time a major life activity can impairment substantially limits a major activity. Therefore, with respect to these be performed; or the way an impairment life activity requires an individualized types of impairments, the necessary affects the operation of a major bodily assessment. However, in making this individualized assessment should be function. In addition, the non- assessment, the term ‘‘substantially particularly simple and straightforward. ameliorative effects of mitigating limits’’ shall be interpreted and applied (iii) For example, applying these measures, such as negative side effects to require a degree of functional principles it should easily be concluded of medication or burdens associated limitation that is lower than the that the types of impairments set forth with following a particular treatment standard for substantially limits applied in paragraphs (d)(2)(iii)(A) through (K) regimen, may be considered when prior to the ADA Amendments Act. of this section will, at a minimum, determining whether an individual’s (vii) The comparison of an substantially limit the major life impairment substantially limits a major individual’s performance of a major life activities indicated. The types of life activity. activity to the performance of the same impairments described in this paragraph (iii) In determining whether an major life activity by most people in the may substantially limit additional major individual has a disability under the general population usually will not life activities (including major bodily ‘‘actual disability’’ or ‘‘record of’’ prongs require scientific, medical, or statistical functions) not explicitly listed in of the definition of ‘‘disability,’’ the evidence. Nothing in this paragraph paragraphs (d)(2)(iii)(A) through (K). focus is on how a major life activity is (d)(1) is intended, however, to prohibit (A) Deafness substantially limits substantially limited, and not on what or limit the presentation of scientific, hearing; outcomes an individual can achieve. For medical, or statistical evidence in (B) Blindness substantially limits example, someone with a learning making such a comparison where seeing; disability may achieve a high level of appropriate. (C) Intellectual disability substantially academic success, but may nevertheless (viii) The determination of whether an limits brain function; be substantially limited in one or more impairment substantially limits a major (D) Partially or completely missing major life activities, including, but not life activity shall be made without limbs or mobility impairments requiring limited to, reading, writing, speaking, or
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learning because of the additional time be entitled to a reasonable modification (b) * * * or effort he or she must spend to read, if needed and related to the past (7)(i) A public entity shall make write, speak, or learn compared to most disability. reasonable modifications in policies, people in the general population. (f) Is regarded as having such an practices, or procedures when the (iv) Given the rules of construction set impairment. The following principles modifications are necessary to avoid forth in this section, it may often be apply under the ‘‘regarded’’ as prong of discrimination on the basis of disability, unnecessary to conduct an analysis the definition of ‘‘disability’’ (paragraph unless the public entity can demonstrate involving most or all of the facts related (a)(1)(iii) of this section): that making the modifications would to condition, manner, or duration. This (1) Except as set forth in paragraph fundamentally alter the nature of the is particularly true with respect to (f)(2) of this section, an individual is service, program, or activity. impairments such as those described in ‘‘regarded as having such an (ii) A public entity is not required to paragraph (d)(2)(iii) of this section, impairment’’ if the individual is provide a reasonable modification to an which by their inherent nature should subjected to a prohibited action because individual who meets the definition of be easily found to impose a substantial of an actual or perceived physical or ‘‘disability’’ solely under the ‘‘regarded limitation on a major life activity, and mental impairment, whether or not that as’’ prong of the definition of for which the individualized assessment impairment substantially limits, or is ‘‘disability’’ at § 35.108(a)(1)(iii). should be particularly simple and perceived to substantially limit, a major * * * * * straightforward. life activity, even if the public entity (i) Nothing in this part shall provide (4) Mitigating measures include, but asserts, or may or does ultimately the basis for a claim that an individual are not limited to: establish, a defense to the action without a disability was subject to (i) Medication, medical supplies, prohibited by the ADA. discrimination because of a lack of equipment, appliances, low-vision (2) An individual is not ‘‘regarded as disability, including a claim that an devices (defined as devices that having such an impairment’’ if the individual with a disability was granted magnify, enhance, or otherwise augment public entity demonstrates that the a reasonable modification that was a visual image, but not including impairment is, objectively, both denied to an individual without a ordinary eyeglasses or contact lenses), ‘‘transitory’’ and ‘‘minor.’’ A public disability. entity may not defeat ‘‘regarded as’’ prosthetics including limbs and devices, * * * * * hearing aid(s) and cochlear implant(s) or coverage of an individual simply by ■ 6. Add Appendix C to part 35 to read other implantable hearing devices, demonstrating that it subjectively as follows: mobility devices, and oxygen therapy believed the impairment was transitory equipment and supplies; and minor; rather, the public entity Appendix C to Part 35—Guidance to (ii) Use of assistive technology; must demonstrate that the impairment Revisions to ADA Title II and Title III (iii) Reasonable modifications or is (in the case of an actual impairment) Regulations Revising the Meaning and auxiliary aids or services as defined in or would be (in the case of a perceived Interpretation of the Definition of this regulation; impairment), objectively, both ‘‘Disability’’ and Other Provisions in (iv) Learned behavioral or adaptive ‘‘transitory’’ and ‘‘minor.’’ For purposes Order To Incorporate the Requirements neurological modifications; or of this section, ‘‘transitory’’ is defined as of the ADA Amendments Act (v) Psychotherapy, behavioral lasting or expected to last six months or therapy, or physical therapy. less. Note: This appendix contains guidance (e) Has a record of such an (3) Establishing that an individual is providing a section-by-section analysis of the impairment. (1) An individual has a ‘‘regarded as having such an revisions to 28 CFR parts 35 and 36 record of such an impairment if the impairment’’ does not, by itself, published on August 11, 2016. individual has a history of, or has been establish liability. Liability is misclassified as having, a mental or established under title II of the ADA Guidance and Section-by-Section Analysis physical impairment that substantially only when an individual proves that a This section provides a detailed limits one or more major life activities. public entity discriminated on the basis description of the Department’s changes to (2) Broad construction. Whether an of disability within the meaning of title the meaning and interpretation of the individual has a record of an definition of ‘‘disability’’ in the title II and II of the ADA, 42 U.S.C. 12131–12134. title III regulations, the reasoning behind impairment that substantially limited a (g) Exclusions. The term ‘‘disability’’ those changes, and responses to public major life activity shall be construed does not include— comments received on these topics. See broadly to the maximum extent (1) Transvestism, transsexualism, Office of the Attorney General; Amendment permitted by the ADA and should not pedophilia, exhibitionism, voyeurism, of Americans with Disabilities Act Title II demand extensive analysis. An gender identity disorders not resulting and Title III Regulations to Implement ADA individual will be considered to fall from physical impairments, or other Amendments Act of 2008, 79 FR 4839 (Jan. within this prong of the definition of sexual behavior disorders; 30, 2014) (NPRM). ‘‘disability’’ if the individual has a (2) Compulsive gambling, Sections 35.101 and 36.101—Purpose and history of an impairment that kleptomania, or pyromania; or Broad Coverage substantially limited one or more major (3) Psychoactive substance use Sections 35.101 and 36.101 set forth the life activities when compared to most disorders resulting from current illegal purpose of the ADA title II and title III people in the general population, or was use of drugs. regulations. In the NPRM, the Department misclassified as having had such an proposed revising these sections by adding Subpart B—General Requirements impairment. In determining whether an references to the ADA Amendments Act in renumbered §§ 35.101(a) and 36.101(a) and impairment substantially limited a ■ 5. Amend § 35.130 by revising by adding new §§ 35.101(b) and 36.101(b), major life activity, the principles paragraph (b)(7) and adding paragraph which explain that the ADA is intended to articulated in paragraph (d)(1) of this (i) to read as follows: have broad coverage and that the definition section apply. of ‘‘disability’’ shall be construed broadly. (3) Reasonable modification. An § 35.130 General prohibitions against The proposed language in paragraph (b) individual with a record of a discrimination. stated that the primary purpose of the ADA substantially limiting impairment may * * * * * Amendments Act is to make it easier for
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people with disabilities to obtain protection impairment that substantially limits one or simply reference paragraph (f) of the under the ADA. Consistent with the ADA more major life activities of an individual; (B) respective section. See also, discussion in the Amendments Act’s purpose of reinstating a a record of such an impairment; or (C) being Guidance and Section-by-Section analysis of broad scope of protection under the ADA, the regarded as having such an impairment.’’ §§ 35.108(f) and 36.105(f), below. definition of ‘‘disability’’ in this part shall be Public Law 101–336, sec. 3 (1990). This Sections 35.108(a)(2) and 36.105(a)(2) construed broadly in favor of expansive three-part definition—the ‘‘actual,’’ ‘‘record coverage to the maximum extent permitted of,’’ and ‘‘regarded as’’ prongs—was modeled Definition of ‘‘disability’’—Rules of by the terms of the ADA. The primary object after the definition of ‘‘handicap’’ found in Construction of attention in ADA cases should be whether the Rehabilitation Act of 1973. H.R. Rep. No. In the NPRM, the Department proposed covered entities have complied with their 110–730, pt. 2, at 6 (2008). The Department’s §§ 35.108(a)(2) and 36.105(a)(2), which set obligations and whether discrimination has 1991 title II and title III ADA regulations forth rules of construction on how to apply occurred, not whether the individual meets reiterate this three-part basic definition as the definition of ‘‘disability.’’ Proposed the definition of disability. The question of follows: §§ 35.108(a)(2)(i) and 36.105(a)(2)(i) state that whether an individual meets the definition of Disability means, with respect to an an individual may establish coverage under disability should not demand extensive individual, any one or more of the prongs in the analysis. • a physical or mental impairment that definition of ‘‘disability’’—the ‘‘actual Many commenters supported inclusion of substantially limits one or more of the major disability’’ prong in paragraph (a)(1)(i), the this information as reiterating the statutory life activities of such individual; ‘‘record of’’ prong in paragraph (a)(1)(ii) or language evincing Congress’ intention ‘‘to • a record of such an impairment; or the ‘‘regarded as’’ prong in paragraph restore a broad definition of ‘disability’ under • being regarded as having such an (a)(1)(iii). See §§ 35.108(a)(1)(i) through (iii); the ADA. . . .’’ Several commenters asked impairment. 36.105(a)(1)(i) through (iii). The NPRM’s the Department to delete the last sentence in 56 FR 35694, 35717 (July 26, 1991); 56 FR inclusion of rules of construction stemmed §§ 35.101(b) and 36.101(b), arguing that 35544, 35548 (July 26, 1991). directly from the ADA Amendments Act, inclusion of this language is inconsistent While the ADA Amendments Act did not which amended the ADA to require that the with the individualized assessment required amend the basic structure or terminology of definition of ‘‘disability’’ be interpreted in under the ADA. Some of these commenters the original statutory definition of conformance with several specific directives acknowledged, however, that this language is ‘‘disability,’’ the Act revised the third prong and an overarching mandate to ensure ‘‘broad drawn directly from the ‘‘Purposes’’ of the to incorporate by reference two specific coverage . . . to the maximum extent ADA Amendments Act. See Public Law 110– provisions construing this prong. 42 U.S.C. permitted by the terms of [the ADA].’’ 42 325, sec. 2(b)(5). The Department declines to 12102(3)(A)–(B). The first statutory provision U.S.C. 12102(4)(A). remove this sentence from the final rule. In clarified the scope of the ‘‘regarded as’’ prong To be covered under the ADA, an addition to directly quoting the statute, the by explaining that ‘‘[a]n individual meets the individual must satisfy only one prong. The Department believes that this language requirement of ‘being regarded as having term ‘‘actual disability’’ is used in these rules neither precludes nor is inconsistent with such an impairment’ if the individual of construction as shorthand terminology to conducting an individualized assessment of establishes that he or she has been subjected refer to an impairment that substantially whether an individual is covered by the to an action prohibited under this chapter limits a major life activity within the ADA. because of an actual or perceived physical or meaning of the first prong of the definition Some commenters recommended that the mental impairment whether or not the of ‘‘disability.’’ See §§ 35.108(a)(1)(i); Department add a third paragraph to these impairment limits or is perceived to limit a 36.105(a)(1)(i). The terminology selected is sections expressly stating that ‘‘not all major life activity.’’ 42 U.S.C. 12102(3)(A). for ease of reference. It is not intended to impairments are covered disabilities.’’ These The second statutory provision provides an suggest that an individual with a disability commenters contended that ‘‘[t]here is a exception to the ‘‘regarded as’’ prong for who is covered under the first prong has any common misperception that having a impairments that are both transitory and greater rights under the ADA than an diagnosed impairment automatically triggers minor. A transitory impairment is defined as individual who is covered under the ‘‘record coverage under the ADA.’’ While the ‘‘an impairment with an actual or expected of’’ or ‘‘regarded as’’ prongs, with the Department does not agree that such a duration of 6 months or less.’’ 42 U.S.C. exception that the ADA Amendments Act misperception is common, it agrees that it 12102(3)(B). In the NPRM, the Department revised the ADA to expressly state that an would be appropriate to include such a proposed revising the ‘‘regarded as’’ prong in individual who meets the definition of statement in the final rule, and has added it §§ 35.108(a)(1)(iii) and 36.105(a)(1)(iii) to ‘‘disability’’ solely under the ‘‘regarded as’’ to the rules of construction explaining the reference the regulatory provisions that prong is not entitled to reasonable phrase ‘‘substantially limits’’ at implement 42 U.S.C. 12102(3). The NPRM modifications of policies, practices, or §§ 35.108(d)(1)(v) and 36.105(d)(1)(v). proposed, at §§ 35.108(f) and 36.105(f), that procedures. See 42 U.S.C. 12201(h). Sections 35.104 and 36.104—Definitions ‘‘regarded as’’ having an impairment would Proposed §§ 35.108(a)(2)(ii) and The current title II and title III regulations mean that the individual has been subjected 36.105(a)(2)(ii) were intended to incorporate include the definition of ‘‘disability’’ in to an action prohibited by the ADA because Congress’s expectation that consideration of regulatory sections that contain all of an actual or perceived impairment that is coverage under the ‘‘actual disability’’ and enumerated definitions in alphabetical order. not both ‘‘transitory and minor.’’ ‘‘record of disability’’ prongs of the definition Given the expanded length of the definition The first proposed sentence directed that of ‘‘disability’’ will generally be unnecessary of ‘‘disability’’ and the number of additional the meaning of the ‘‘regarded as prong’’ shall except in cases involving requests for subsections required in order to give effect to be understood in light of the requirements in reasonable modifications. See 154 Cong. Rec. the requirements of the ADA Amendments §§ 35.108(f) and 36.105(f). The second H6068 (daily ed. June 25, 2008) (joint Act, the Department, in the NPRM, proposed proposed sentence merely provided a statement of Reps. Steny Hoyer and Jim moving the definition of ‘‘disability’’ from summary restatement of the requirements of Sensenbrenner). Accordingly, these the general definitional sections at §§ 35.104 §§ 35.108(f) and 36.105(f). The Department provisions state that, absent a claim that a and 36.104 to a new section in each received no comments in response to this covered entity has failed to provide regulation, §§ 35.108 and 36.105, proposed language. Upon consideration, reasonable modifications, typically it is not respectively. however, the Department decided to retain necessary to rely on the ‘‘actual disability’’ or The Department received no public the first proposed sentence but omit the ‘‘record of’’ disability prongs. Instead, in comments in response to this proposal and second as superfluous. Because the first such cases, the coverage can be evaluated the definition of ‘‘disability’’ remains in its sentence explicitly incorporates and directs exclusively under the ‘‘regarded as’’ prong,’’ own sections in the final rule. the public to the requirements set out in which does not require a showing of an §§ 35.108(f) and 36.105(f), the Department impairment that substantially limits a major Sections 35.108(a)(1) and 36.105(a)(1) believes that summarizing those life activity or a record of such an Definition of ‘‘disability’’—General requirements here is unnecessary. impairment. Whether or not an individual is In the ADA, Congress originally defined Accordingly, in the final rule, challenging a covered entity’s failure to ‘‘disability’’ as ‘‘(A) a physical or mental §§ 35.108(a)(1)(iii) and 36.105(a)(1)(iii) provide reasonable modifications, the
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individual may nevertheless proceed under commenters remarked that as ‘‘research and cancer or diabetes. The list is merely the ‘‘actual disability’’ or ‘‘record of’’ prong. practice bear out, dyslexia is just one of the illustrative and not exhaustive. The The Department notes, however, that where specific learning disabilities that arise from regulations clearly state that the phrase an individual is challenging a covered ‘neurological differences in brain structure ‘‘physical or mental impairment’’ includes, entity’s failure to provide effective and function and affect a person’s ability to but is not limited to’’ the examples provided. communication, that individual cannot rely receive, store, process, retrieve or No negative implications should be drawn solely on the ‘‘regarded as prong’’ because communicate information.’ ’’ These from the omission of any specific impairment the entitlement to an auxiliary aid or service commenters identified the most common in §§ 35.108(b) and 36.105(b). is contingent on a disability-based need for specific learning disabilities as: ‘‘Dyslexia, The Department notes that it is important the requested auxiliary aid or service. See 28 dysgraphia, dyscalculia, auditory processing to distinguish between conditions that are CFR 35.160(b), 28 CFR 36.303(c). disorder, visual processing disorder and non- impairments and physical, environmental, The Department received no comments verbal learning disabilities,’’ and cultural, or economic characteristics that are objecting to these proposed rules of recommended that the Department rephrase not impairments. The definition of the term construction. The final rule retains these its reference to specific learning disabilities ‘‘impairment’’ does not include physical provisions but renumbers them as paragraphs to make clear that there are many other characteristics such as eye color, hair color, (ii) and (iii) of §§ 35.108(a)(2) and specific learning disabilities besides dyslexia. or left-handedness, or height, weight, or 36.105(a)(2) and replaces the reference to The Department has considered all of these muscle tone that are within ‘‘normal’’ range. ‘‘covered entity’’ in the title III regulatory text comments and has decided to use the phrase Moreover, conditions that are not themselves with ‘‘public accommodation.’’ ‘‘dyslexia and other specific learning physiological disorders, such as pregnancy, The Department has added a third rule of disabilities’’ in the final rule. are not impairments. However, even if an construction at the beginning of Another commenter asked the Department underlying condition or characteristic is not §§ 35.108(a)(2) and 36.105(a)(2), numbered to add a specific definition of dyslexia to the itself a physical or mental impairment, it may §§ 35.108(a)(2)(i) and 36.105(a)(2)(i). Closely regulatory text itself. The Department give rise to a physical or mental impairment tracking the amended statutory language, declines to do so as it does not give that substantially limits a major life activity. these provisions state that ‘‘[t]he definition of definitions for any other physical or mental In such a case, an individual would be able disability shall be construed broadly in favor impairment in the regulations. to establish coverage under the ADA. For of expansive coverage, to the maximum Other commenters recommended that the example, while pregnancy itself is not an extent permitted by the terms of the ADA.’’ Department add ADHD to the list of impairment, a pregnancy-related impairment See 42 U.S.C. 12102(4)(A). This principle is examples of ‘‘physical or mental that substantially limits a major life activity referenced in other portions of the final rule, impairments’’ in §§ 35.108(b)(2) and will constitute a disability under the first 3 but the Department believes it is important 36.105(b)(2). Some commenters stated that prong of the definition.4 Major life activities to include here underscore Congress’s intent ADHD, which is not a specific learning that might be substantially limited by that it be applied throughout the disability, is a very commonly diagnosed pregnancy-related impairments could determination of whether an individual falls impairment that is not always well include walking, standing, and lifting, as within the ADA definition of ‘‘disability.’’ understood. These commenters expressed well as major bodily functions such as the concern that excluding ADHD from the list Sections 35.108(b) and 36.105(b)—Physical musculoskeletal, neurological, of physical and mental impairments could be or Mental Impairment cardiovascular, circulatory, endocrine, and construed to mean that ADHD is less likely reproductive functions. Alternatively, a The ADA Amendments Act did not change to support an assertion of disability as pregnancy-related impairment may constitute the meaning of the term ‘‘physical or mental compared to other impairments. On impairment.’’ Thus, in the NPRM, the a ‘‘record of’’ a substantially limiting consideration, the Department agrees that, impairment, or may be covered under the Department proposed only minor due to the prevalence of ADHD but lack of ‘‘regarded as’’ prong if it is the basis for a modifications to the general regulatory public understanding of the condition, prohibited action and is not both ‘‘transitory definitions for this term at §§ 35.108(b)(1)(i) inclusion of ADHD among the examples set and minor.’’ and 36.105(b)(1)(i) by adding examples of forth in §§ 35.108(b)(2) and 36.105(b)(2) will two additional body systems—the immune provide appropriate and helpful guidance to Sections 35.108(c) and 36.105(c)—Major Life system and the circulatory system—that may the public. Activities be affected by a physical impairment. Other commenters asked the Department to Prior to the passage of the ADA In addition, the Department proposed include arthritis, neuropathy, and other Amendments Act, the ADA did not define adding ‘‘dyslexia’’ to §§ 35.108(b)(2) and examples of physical or mental impairments 36.105(b)(2) as an example of a specific ‘‘major life activities,’’ leaving delineation of that could substantially impair a major life illustrative examples to agency regulations. learning disability that falls within the activity. The Department declines to add any Paragraph 2 of the definition of ‘‘disability’’ meaning of the phrase ‘‘physical or mental other examples because, while it notes the in the Department’s current title II and title impairment.’’ Although dyslexia is a specific value in clarifying the existence of III regulations at 28 CFR 35.104 and 36.104 diagnosable learning disability that causes impairments such as ADHD, it also states that ‘‘major life activities’’ means difficulties in reading, unrelated to recognizes that the regulation need not functions such as caring for one’s self, intelligence and education, the Department elaborate an inclusive list of all impairments, performing manual tasks, walking, seeing, became aware that some covered entities particularly those that are very prevalent, hearing, speaking, breathing, learning, and mistakenly believe that dyslexia is not a such as arthritis, or those that may be working. clinically diagnosable impairment. Therefore, symptomatic of other underlying the Department sought public comment impairments already referenced in the list, The ADA Amendments Act significantly regarding its proposed inclusion of a such as neuropathy, which may be caused by expanded the range of major life activities by reference to dyslexia in these sections. directing that ‘‘major’’ be interpreted in a more expansive fashion, by adding a The Department received a significant 3 The Department is using the term ADHD in the significant new category of major life number of comments in response to this same manner as it is currently used in the proposal. Many commenters supported Diagnostic and Statistical Manual of Mental activities, and by providing non-exhaustive inclusion of the reference to dyslexia. Some Disorders: Fifth Edition (DSM–5), to refer to three of these commenters also asked the different presentations of symptoms: Predominantly 4 Pregnancy-related impairments may include, Department to include other examples of inattentive (which was previously known as but are not limited to: Disorders of the uterus and specific learning disabilities such as ‘‘attention deficit disorder); predominantly cervix, such as insufficient cervix or uterine dysgraphia 1 and dyscalculia.2 Several hyperactive or impulsive; or a combined fibroids; and pregnancy-related anemia, sciatica, presentation of inattention and hyperactivity- carpal tunnel syndrome, gestational diabetes, impulsivity. The DSM–5 is the most recent edition nausea, abnormal heart rhythms, limited 1 Dysgraphia is a learning disability that of a widely-used manual designed to assist circulation, or depression. See EEOC Enforcement negatively affects the ability to write. clinicians and researchers in assessing mental Guidance on Pregnancy Discrimination and Related 2 Dyscalculia is a learning disability that disorders. See Diagnostic and Statistical Manual of Issues, EEOC Notice 915.003, June 25, 2015, negatively affects the processing and learning of Mental Disorders: Fifth Edition DSM–5, American available at http://www.eeoc.gov/laws/guidance/ numerical information. Psychiatric Association, at 59–66 (2013). pregnancy_guidance.cfm (last visited Feb. 3, 2016).
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lists of examples of major life activities. The repeatedly stressed that writing is one of the bodily functions also are specified in the amended statute’s first list of major life major life activities that is often affected by EEOC title I final regulation. 29 CFR activities includes, but is not limited to, a covered learning disability. See, e.g., 154 1630.2(i)(1)(i). ‘‘caring for oneself, performing manual tasks, Cong. Rec. S8842 (daily ed. Sept. 16, 2008) One commenter objected to the seeing, hearing, eating, sleeping, walking, (Statement of the Managers); H.R. Rep. No. Department’s inclusion of additional standing, lifting, bending, speaking, 110–730 pt. 1, at 10–11 (2008). examples of major life activities in both these breathing, learning, reading, concentrating, Other than ‘‘writing,’’ the Department lists, suggesting that the Department include thinking, communicating, and working.’’ 42 declines to add additional examples of major only those activities and conditions U.S.C. 12102(2)(A). The ADA Amendments life activities to these provisions in the final specifically set forth in the ADA as amended. Act also broadened the definition of ‘‘major rule. This list is illustrative, and the The Department believes that providing other life activity’’ to include physical or mental Department believes that it is neither examples of major life activities, including impairments that substantially limit the necessary nor possible to list every major life major bodily functions, is within the operation of a ‘‘major bodily function,’’ activity. Moreover, the Department notes that Attorney General’s authority to both interpret which include, but are not limited to, the many of the commenters’ suggested titles II and III of the ADA and promulgate ‘‘functions of the immune system, normal inclusions implicate life activities already implementing regulations and that these cell growth, digestive, bowel, bladder, included on the list. For example, although, examples provide helpful guidance to the neurological, brain, respiratory, circulatory, as commenters pointed out, some courts have public. Therefore, the Department declines to endocrine, and reproductive functions.’’ 42 concluded that test taking is a major life limit its lists of major life activities to those U.S.C. 12102(2)(B). These expanded lists of activity,6 the Department notes that one or specified in the statute. Further, the examples of major life activities reflect more already-included major life activities— Department notes that even the expanded Congress’s directive to expand the meaning such as reading, writing, concentrating, or lists of major life activities and major bodily of the term ‘‘major’’ in response to court thinking, among others—will virtually functions are illustrative and non-exhaustive. decisions that interpreted the term more always be implicated in test taking. The absence of a particular life activity or narrowly than Congress intended. See Public Similarly, activities such as operating farm bodily function from the list should not Law 110–25, sec. 3 (b)(4). equipment, or maintaining a septic or well create a negative implication as to whether system, implicate already-listed major life such activity or function constitutes a major Examples of Major Life Activities, Other activities such as reaching, lifting, bending, Than the Operations of a Major Bodily life activity under the statute or the walking, standing, and performing manual implementing regulation. Function tasks. In the NPRM, at §§ 35.108(c) and 36.105(c), The commenters’ suggested additions also Rules of Construction for Major Life Activities the Department proposed revisions of the implicate the operations of various bodily In the NPRM, proposed §§ 35.108(c)(2) and title II and title III lists of examples of major systems that may already be recognized as 36.105(c)(2) set out two specific principles life activities (other than the operations of a major life activities. See discussion of applicable to major life activities: ‘‘[i]n major bodily function) to incorporate all of §§ 35.108(c)(1)(ii) and 36.105(c)(1)(ii), below. determining other examples of major life the statutory examples, as well as to provide For example, it is the Department’s view that activities, the term ‘major’ shall not be additional examples included in the EEOC individuals who have cognitive or other interpreted strictly to create a demanding title I final regulation—reaching, sitting, and impairments that affect the range of abilities standard for disability,’’ and ‘‘[w]hether an interacting with others. See 29 CFR that are often described as part of ‘‘executive activity is a ‘major life activity’ is not 1630.2(i)(1)(i). function’’ will likely be able to assert that determined by reference to whether it is of A number of commenters representing they have impairments that substantially ‘central importance to daily life.’ ’’ The persons with disabilities or the elderly limit brain function, which is one of the proposed language furthered a main purpose recommended that the Department add a major bodily functions listed among the of the ADA Amendments Act—to reject the wide variety of other activities to this first examples of major life activities. standards enunciated by the Supreme Court list. Some commenters asked the Department Examples of Major Life Activities— in Toyota Motor Manufacturing, Kentucky, to include references to test taking, writing, Inc. v. Williams that (1) strictly interpreted 5 Operations of a Major Bodily Function typing, keyboarding, or executive function. the terms ‘‘substantially’’ and ‘‘major’’ in the Several commenters asked the Department to In the NPRM, the Department proposed revising the regulatory definitions of definition of ‘‘disability’’ to create a include other activities as well, such as the demanding standard for qualifying as ability to engage in sexual activity, perform disability at §§ 35.108(c)(1)(ii) and 36.105(c)(1)(ii) to make clear that the disabled under the ADA, and that (2) mathematical calculations, travel, or drive. required an individual to have an One commenter asked the Department to operations of major bodily functions are major life activities, and to include a non- impairment that prevents or severely restricts recognize that, depending upon where the individual from doing activities that are people live, other life activities may fall exhaustive list of examples of major bodily functions, consistent with the language of the of central importance to most people’s daily within the category of major life activities. lives to be considered as ‘‘substantially This commenter asserted, for example, that ADA as amended. Because the statutory list is non-exhaustive, the Department also limited’’ in performing a major life activity tending livestock or operating farm under the ADA. Public Law 110–325, sec. equipment can be a major life activity in a proposed further expanding the list to include the following examples of major 2(b)(4). farming or ranching community, and that The Department did not receive any maintaining septic, well or water systems, or bodily functions: The functions of the special sense organs and skin, genitourinary, comments objecting to its proposed language. gardening, composting, or hunting may be a In the final rule, the Department retained major life activity in a rural community. cardiovascular, hemic, lymphatic, and musculoskeletal systems. These six major these principles but has numbered each On consideration of the legislative history principle individually and deemed them and the relevant public comments, the ‘‘rules of construction’’ because they are Department decided to include ‘‘writing’’ as 6 In Bartlett v. N.Y. State Bd. of Law Exam’rs, 970 F. Supp. 1094, 1117 (S.D.N.Y. 1997), aff’d in part intended to inform the determination of an additional example in its non-exhaustive whether a particular activity is a major life list of examples of major life activities in the and vacated in part, 156 F.3d 321 (2d Cir. 1998), cert. granted, judgment vacated on other grounds, activity. final rule. The Department notes Congress 527 U.S. 1031 (1999), and aff’d in part, vacated in part, 226 F.3d 69 (2d Cir. 2000), then-Judge Sections 35.108(d)(1) and 36.105(d)(1)— 5 ‘‘Executive function’’ is an umbrella term that Sotomayor stated, ‘‘[I]n the modern era, where test- Substantially Limits has been described as referring to ‘‘a constellation taking begins in the first grade, and standardized Overview. The ADA as amended directs of cognitive abilities that include the ability to plan, tests are a regular and often life-altering occurrence that the term ‘‘substantially limits’’ shall be organize, and sequence tasks and manage multiple thereafter, both in school and at work, I find test- ‘‘interpreted consistently with the findings tasks simultaneously.’’ See, e.g. National Institute of taking is within the ambit of ‘major life activity.’ ’’ Neurological Disorders and Stroke, Domain Specific See also Rawdin v. American Bd. of Pediatrics, 985 and purposes of the ADA Amendments Act.’’ Tasks of Executive Functions, available at F. Supp. 2d 636 (E.D. Pa. 2013), aff’d. on other 42 U.S.C. 12102(4)(B). See also Findings and grants.nih.gov/grants/guide/notice-files/NOT-NS- grounds, 2014 U.S. App. LEXIS 17002 (3d Cir. Sept. Purposes of the ADA Amendments Act, 04-012.html (last visited Feb. 3, 2016). 3, 2014). Public Law 110–325, sec. 2(a)–(b). In the
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NPRM, the Department proposed to add nine ed. Sept. 16, 2008) (Statement of the rules of construction at proposed rules of construction at §§ 35.108(d) and Managers). §§ 35.108(d)(1)(iii) and 36.105(d)(1)(iii) make 36.105(d) clarifying how to interpret the The Department believes that the nine clear that the primary object of attention in meaning of ‘‘substantially limits’’ when rules of construction interpreting the term ADA cases should be whether public or other determining whether an individual’s ‘‘substantially limits’’ provide ample covered entities have complied with their impairment substantially limits a major life guidance on determining whether an obligations and whether discrimination has activity. These rules of construction are impairment substantially limits a major life occurred, not the extent to which an based on the requirements of the ADA as activity and are sufficient to ensure that individual’s impairment substantially limits amended and the clear mandates of the covered entities will be able to understand a major life activity. In particular, the legislative history. Due to the insertion of the and apply Congress’s intentions with respect threshold issue of whether an impairment rules of construction, these provisions are to the breadth of the definition of substantially limits a major life activity renumbered in the final rule. ‘‘disability.’’ should not demand extensive analysis. Moreover, the commenters’ arguments that A number of commenters expressed Sections 35.108(d)(1)(i) and 36.105(d)(1)(i)— these provisions would undermine support for these rules of construction, Broad Construction, Not a Demanding congressional intent are unsupported. To the noting that they reinforced Congress’s intent Standard contrary, Congress clearly intended the ADA in ensuring that the primary focus will be on In accordance with Congress’s overarching Amendments Act to expand coverage: ‘‘The compliance. Several commenters objected to directive to construe the term ‘‘disability’’ managers have introduced the ADA the use of the word ‘‘cases’’ in these broadly, see 42 U.S.C. 12102(4)(A), the Amendments Act of 2008 to restore the provisions, stating that it lacked clarity. The Department, in its NPRM, proposed proper balance and application of the ADA word ‘‘cases’’ tracks the language of the ADA §§ 35.108(d)(1)(i) and 36.105(d)(1)(i), which by clarifying and broadening the definition of Amendments Act and the Department state: ‘‘The term ‘substantially limits’ shall be disability, and to increase eligibility for the declines to change the term. construed broadly in favor of expansive protections of the ADA. It is our expectation A few commenters objected to these coverage, to the maximum extent permitted that because this bill makes the definition of provisions because they believed that the by the terms of the ADA.’’ These provisions disability more generous, some people who language would be used to supersede or are also rooted in the Findings and Purposes were not covered before will now be otherwise change the required analysis of of the ADA Amendments Act, in which covered.’’ 154 Cong. Rec. S8441 (daily ed. requests for reasonable modifications or Congress instructed that ‘‘the question of Sept. 16, 2008) (Statement of the Managers). testing accommodations. See 28 CFR whether an individual’s impairment is a The Department has also considered the 35.130(b)(7), 36.302, 36.309. The Department disability under the ADA should not demand comments expressed about the interplay disagrees with these commenters. These rules extensive analysis.’’ See Public Law 110–325, between the proposed regulatory language of construction relate only to the sec. 2(b)(1), (4)–(5). and the diagnosis of learning disabilities and determination of coverage under the ADA. Several commenters on these provisions ADHD disorders. The Department believes They do not change the analysis of whether supported the Department’s proposal to that the revised definition of ‘‘disability,’’ a discriminatory act has taken place, include these rules of construction, noting including, in particular, the provisions including the determination as to whether an that they were in keeping with both the construing ‘‘substantially limits,’’ strikes the individual is entitled to a reasonable statutory language and Congress’s intent to appropriate balance to effectuate Congress’s modification or testing accommodation. See broaden the definition of ‘‘disability’’ and intent when it passed the ADA Amendments discussion of §§ 35.108(d)(1)(vii) and restore expansive protection under the ADA. Act, and will not modify its regulatory 36.105(d)(1)(vii) below. Some of these commenters stated that, even language in response to these comments. The Department retained the language of after the passage of the ADA Amendments these rules of construction in the final rule Act, some covered entities continued to Sections 35.108(d)(1)(ii) and except that in the title III regulatory text it apply a narrow definition of ‘‘disability.’’ 36.105(d)(1)(ii)—Primary Object of ADA has changed the reference from ‘‘covered Other commenters expressed concerns that Cases entity’’ to ‘‘public accommodation.’’ The the proposed language would undermine In the ADA Amendments Act, Congress Department also renumbered these congressional intent by weakening the directed that rules of construction should provisions as §§ 35.108(d)(1)(ii) and meaning of the word ‘‘substantial.’’ One of ensure that ‘‘substantially limits’’ is 36.105(d)(1)(ii). these commenters asked the Department to construed in accordance with the findings define the term ‘‘substantially limited’’ to and purposes of the statute. See 42 U.S.C. Sections 35.108(d)(1)(iii) and include an element of materiality, while 12102(4)(B). One of the purposes of the Act 36.105(d)(1)(iii)—Impairment Need Not other commenters objected to the breadth of was to convey that ‘‘the primary object of Substantially Limit More Than One Major these provisions and argued that it would attention in cases brought under the ADA Life Activity make the pool of people who might claim should be whether entities covered under the Proposed §§ 35.108(d)(1)(viii) and disabilities too large, allowing those without ADA have complied with the obligations and 36.105(d)(1)(viii) stated that ‘‘[a]n substantial limitations to be afforded to convey that the question of whether an impairment that substantially limits one protections under the law. Another individuals’ impairment is a disability major life activity need not substantially commenter expressed concern about the should not demand extensive analysis.’’ limit other major life activities in order to be application of the regulatory language to the Public Law 110–325, sec. 2(b)(5). The considered a substantially limiting diagnosis of learning disabilities and ADHD. legislative history clarifies that: ‘‘Through impairment.’’ See 42 U.S.C. 12102(4)(C). This The Department considered all of these this broad mandate [of the ADA], Congress language reflected the statutory intent to comments and declines to provide a sought to protect anyone who is treated less reject court decisions that had required definition of the term ‘‘substantially limits’’ favorably because of a current, past, or individuals to show that an impairment or make any other changes to these perceived disability. Congress did not intend substantially limits more than one major life provisions in the final rule. The Department for the threshold question of disability to be activity. See 154 Cong. Rec. S8841–44 (daily notes that Congress considered and expressly used as a means of excluding individuals ed. Sept. 16, 2008) (Statement of the rejected including language defining the term from coverage. Nevertheless, as the courts Managers). Applying this principle, for ‘‘substantially limits’’: ‘‘We have concluded began interpreting and applying the example, an individual seeking to establish that adopting a new, undefined term that is definition of disability strictly, individuals coverage under the ADA need not show a subject to widely disparate meanings is not have been excluded from the protections that substantial limitation in the ability to learn the best way to achieve the goal of ensuring the ADA affords because they are unable to if that individual is substantially limited in consistent and appropriately broad coverage meet the demanding judicially imposed another major life activity, such as walking, under this Act. The resulting need for further standard for qualifying as disabled.’’). H.R. or the functioning of the nervous or judicial scrutiny and construction will not Rep. No. 110–730, pt. 2, at 5 (2008) (House endocrine systems. The proposed rule also help move the focus from the threshold issue Committee on the Judiciary). was intended to clarify that the ability to of disability to the primary issue of In keeping with Congress’s intent and the perform one or more particular tasks within discrimination.’’ 154 Cong. Rec. S8441. (daily language of the ADA Amendments Act, the a broad category of activities does not
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preclude coverage under the ADA. See H.R. one commenter questioned about how school activity in order to be substantially limiting. Rep. No. 110–730, pt. 2, at 19 & n.52 (2008) systems should provide reasonable The proposed language in the NPRM was (House Committee on the Judiciary). For modifications to students with disabilities rooted in the corrective nature of the ADA instance, an individual with cerebral palsy that are episodic or in remission. As Amendments Act and its explicit rejection of could have a capacity to perform certain discussed elsewhere in this guidance, the the strict standards imposed under Toyota manual tasks yet nonetheless show a determination of what is an appropriate and its progeny. See Public Law 110–325, substantial limitation in the ability to modification is separate and distinct from the sec. 2(b)(4). perform a ‘‘broad range’’ of manual tasks. determination of whether an individual is The Department received several The Department received one comment covered by the ADA, and the Department comments on these provisions, none of specifically supporting this provision and will not modify its regulatory language in which recommended modification of the none opposing it. The Department is response to this comment. regulatory language. A few commenters retaining this language in the final rule raised concerns that are further addressed in Sections 35.108(d)(1)(v) and 36.105(d)(1)(v)— although it is renumbered and is found at the ‘‘Condition, manner, or duration’’ section Comparisons to Most People in the §§ 35.108(d)(1)(iii) and 36.105(d)(1)(iii). below, regarding the Department’s inclusion Population, and Impairment Need Not in the NPRM preamble of a reference to Sections 35.108(d)(1)(iv) and Prevent or Significantly or Severely Restrict a possibly using similarly situated individuals 36.105(d)(1)(iv)—Impairments That Are Major Life Activity as the basis of comparison. The Department Episodic or in Remission In the legislative history of the ADA has removed this discussion and clarified The ADA as amended provides that ‘‘an Amendments Act, Congress explicitly that it does not endorse reliance on similarly impairment that is episodic or in remission recognized that it had always intended that situated individuals to demonstrate is a disability if it would substantially limit determinations of whether an impairment substantial limitations. For example, the a major life activity when active.’’ substantially limits a major life activity Department recognizes that when 42 U.S.C. 12102(4)(D). In the NPRM, the should be based on a comparison to most determining whether an elderly person is Department proposed §§ 35.108(d)(1)(vii) and people in the population. The Senate substantially limited in a major life activity, 36.105(d)(1)(vii) to directly incorporate this Managers Report approvingly referenced the the proper comparison is most people in the language. These provisions are intended to discussion of this requirement in the general population, and not similarly reject the reasoning of court decisions committee report from 1989. See 154 Cong. situated elderly individuals. Similarly, concluding that certain individuals with Rec. S8842 (daily ed. Sept. 16, 2008) someone with ADHD should be compared to certain conditions—such as epilepsy or post (Statement of the Managers) (citing S. Rep. most people in the general population, most traumatic stress disorder—were not protected No. 101–116, at 23 (1989)). The preamble to of whom do not have ADHD. Other by the ADA because their conditions were the Department’s 1990 title II and title III commenters expressed interest in the episodic or intermittent. The legislative regulations also referenced that the impact of possibility that, in some cases, evidence to history provides that ‘‘[t]his . . . rule of an individual’s impairment should be based support an assertion that someone has an construction thus rejects the reasoning of the on a comparison to most people. See 56 FR impairment might simultaneously be used to courts in cases like Todd v. Academy Corp. 35694, 35699 (July 26, 1991). demonstrate that the impairment is [57 F. Supp. 2d 448, 453 (S.D. Tex. 1999)] Consistent with its longstanding intent, substantially limiting. These commenters where the court found that the plaintiff’s Congress directed, in the ADA Amendments approvingly referenced the EEOC’s epilepsy, which resulted in short seizures Act, that disability determinations ‘‘should interpretive guidance for its ADA during which the plaintiff was unable to not demand extensive analysis’’ and that Amendments Act regulation, which provided speak and experienced tremors, was not impairments do not need to rise to the level an example of an individual with a learning sufficiently limiting, at least in part because of ‘‘prevent[ing] or severely restrict[ing] the disability. See 76 FR 16978, 17009 (Mar. 25, those seizures occurred episodically. It individual from doing activities that are of 2011). In that example, evidence gathered to similarly rejects the results reached in cases central importance to most people’s daily demonstrate the impairment of a learning [such as Pimental v. Dartmouth-Hitchcock lives.’’ See Public Law 110–325, sec. 2(b)(4)– disability showed a discrepancy between the Clinic, 236 F. Supp. 2d 177, 182–83 (D.N.H. (5). In giving this direction, Congress sought person’s age, measured intelligence, and 2002)] where the courts have discounted the to correct the standard that courts were education and that person’s actual versus impact of an impairment [such as cancer] applying to determinations of disability after expected achievement. The EEOC noted that that may be in remission as too short-lived Toyota, which had created ‘‘a situation in such individuals also likely would be able to to be substantially limiting. It is thus which physical or mental impairments that demonstrate substantial limitations caused expected that individuals with impairments would previously have been found to by that impairment to the major life activities that are episodic or in remission (e.g., constitute disabilities are not considered of learning, reading, or thinking, when epilepsy, multiple sclerosis, cancer) will be disabilities under the Supreme Court’s compared to most people in the general able to establish coverage if, when active, the narrower standard.’’ 154 Cong. Rec. S8840– population, especially when the ameliorative impairment or the manner in which it 8841 (daily ed. Sept. 16, 2008) (Statement of effects of mitigating measures were set aside. manifests (e.g., seizures) substantially limits the Managers). The ADA Amendments Act The Department concurs with this view. a major life activity.’’ H.R. Rep. No. 110–730, thus abrogates Toyota’s holding by Finally, the Department added an explicit pt. 2, at 19–20 (2008) (House Committee on mandating that ‘‘substantially limited’’ must statement recognizing that not every the Judiciary). no longer create ‘‘an inappropriately high impairment will constitute a disability Some examples of impairments that may level of limitation.’’ See Public Law 110–325, within the meaning of the section. This be episodic include hypertension, diabetes, sec. 2(b)(4)–(5) and 42 U.S.C. 12102(4)(B). language echoes the Senate Statement of asthma, major depressive disorder, bipolar For example, an individual with carpal Managers, which clarified that: ‘‘[N]ot every disorder, and schizophrenia. The fact that the tunnel syndrome, a physical impairment, can individual with a physical or mental periods during which an episodic demonstrate that the impairment impairment is covered by the first prong of impairment is active and substantially limits substantially limits the major life activity of the definition of disability in the ADA. An a major life activity may be brief or occur writing even if the impairment does not impairment that does not substantially limit infrequently is no longer relevant to prevent or severely restrict the individual a major life activity is not a disability under determining whether the impairment from writing. this prong.’’ 154 Cong. Rec. S8841 (daily ed. substantially limits a major life activity. For Accordingly, proposed §§ 35.108(d)(1)(ii) Sept. 16, 2008) (Statement of the Managers). example, a person with post-traumatic stress and 36.105(d)(1)(ii) state that an impairment disorder who experiences intermittent is a disability if it substantially limits the Sections 35.108(d)(1)(vi) and flashbacks to traumatic events is ability of an individual to perform a major 36.105(d)(1)(vi)—‘‘Substantially Limits’’ substantially limited in brain function and life activity as compared to most people in Shall Be Interpreted To Require a Lesser thinking. the general population. However, an Degree of Functional Limitation Than That The Department received three comments impairment does not need to prevent, or Required Prior to the ADA Amendments Act in response to these provisions. Two significantly or severely restrict, an In the NPRM, proposed §§ 35.108(d)(1)(iv) commenters supported this provision and individual from performing a major life and 36.105(d)(1)(iv) state that determining
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whether an impairment substantially limits a a number of comments opposing all or part CFR 36.309, one commenter requested major life activity requires an individualized of them. One commenter representing revisions to § 36.309 to acknowledge the assessment. But, the interpretation and individuals with disabilities expressed changes to regulatory language in the application of the term ‘‘substantially limits’’ support for the proposed language, noting definition of ‘‘disability.’’ Another for this assessment requires a lower degree of that ‘‘[m]any people with disabilities have commenter noted that the proposed changes functional limitation than the standard limited resources and requiring them to hire to the regulatory definition of ‘‘disability’’ applied prior to the ADA Amendments Act. an expert witness to confirm their disability warrant new agency guidance on how the These rules of construction reflect would pose an insurmountable barrier that ADA applies to requests for testing Congress’s concern that prior to the adoption could prevent them from pursuing their ADA accommodations. of the ADA Amendments Act, courts were cases.’’ The Department does not consider it using too high a standard to determine Commenters representing testing entities appropriate to include provisions related to whether an impairment substantially limited objected to this language arguing that they testing accommodations in the definitional a major life activity. See Public Law 110–325, needed scientific, medical, or statistical sections of the ADA regulations. The sec. 2(b)(4)–(5); see also 154 Cong. Rec. evidence in order to determine whether an determination of disability, and thus S8841 (daily ed. Sept. 16, 2008) (Statement individual has a learning disability or ADHD. coverage under the ADA, is governed by the of the Managers) (‘‘This bill lowers the These commenters argued that, unlike other statutory and regulatory definitions and the standard for determining whether an disabilities, assessment of learning related rules of construction. Those impairment constitute[s] a disability and disabilities and ADHD require scientific, provisions do not speak to what testing reaffirms the intent of Congress that the medical, or statistical evidence because such accommodations an individual with a definition of disability in the ADA is to be disabilities have no overt symptoms, cannot disability is entitled to under the ADA nor interpreted broadly and inclusively.’’). be readily observed, and lack medical or to the related questions of what a testing The Department received no comments on scientific verifiability. One commenter stated entity may request or require from an these provisions. The text of these provisions that the proposed language ‘‘favor[s] individual with a disability who seeks testing is unchanged in the final rule, although they expedience over evidence-based guidance.’’ accommodations. Testing entities’ have been renumbered as §§ 35.108(d)(1)(vi) In opposing these provisions, these substantive obligations are governed by 42 and 36.105(d)(1)(vi). commenters appear to conflate proof of the U.S.C. 12189 and the implementing existence of an impairment with the analysis regulation at 28 CFR 36.309. The Sections §§ 35.108(d)(1)(vii) and of how an impairment substantially limits a implementing regulation clarifies that private 36.105(d)(1)(vii)—Comparison of Individual’s major life activity. These provisions address entities offering covered examinations need Performance of Major Life Activity Usually only how to evaluate whether an impairment to make sure that any request for required Will Not Require Scientific, Medical, or substantially limits a major life activity, and documentation is reasonable and limited to Statistical Analysis the Department’s proposed language the need for the requested modification, In the NPRM, the Department proposed at appropriately reflects Congress’s intent to accommodation, or auxiliary aid or service. §§ 35.108(d)(1)(v) and 36.105(d)(1)(v) rules of ensure that individuals with disabilities are Furthermore, when considering requests for construction making clear that the not precluded from seeking protection under modifications, accommodations, or auxiliary comparison of an individual’s performance of the ADA because of overbroad, burdensome, aids or services, the entity should give a major life activity to that of most people in and generally unnecessary evidentiary considerable weight to documentation of past the general population usually will not requirements. Moreover, the Department modifications, accommodations, or auxiliary require scientific, medical, or statistical disagrees with the commenters’ suggestion aids or services received in similar testing evidence. However, this rule is not intended that an individual with ADHD or a specific situations or provided in response to an to prohibit or limit the use of scientific, learning disability can never demonstrate Individualized Education Program (IEP) medical, or statistical evidence in making how the impairment substantially limits a provided under the IDEA or a plan describing such a comparison where appropriate. major life activity without scientific, medical, services provided under section 504 of the These rules of construction reflect or statistical evidence. Scientific, medical, or Rehabilitation Act of 1973 (often referred as Congress’s rejection of the demanding statistical evidence usually will not be a Section 504 Plan). standards of proof imposed upon individuals necessary to determine whether an Contrary to the commenters’ suggestions, with disabilities who tried to assert coverage individual with a disability is substantially there is no conflict between the regulation’s under the ADA prior to the adoption of the limited in a major life activity. However, as definitional provisions and title III’s testing ADA Amendments Act. In passing the Act, the rule notes, such evidence may be accommodation provisions. The first Congress rejected the idea that the disability appropriate in some circumstances. addresses the core question of who is covered determination should be ‘‘an onerous burden One commenter suggested that the words under the definition of ‘‘disability,’’ while for those seeking accommodations or ‘‘where appropriate’’ be deleted from these the latter sets forth requirements related to modifications.’’ See 154 Cong. Rec. S8842 provisions in the final rule out of concern documenting the need for particular testing (daily ed. Sept. 16, 2008) (Statement of the that they may be used to preclude accommodations. To the extent that testing Managers). These rules make clear that in individuals with disabilities from proffering entities are urging conflation of the analysis most cases, people with impairments will not scientific or medical evidence in support of for establishing disability with that for need to present scientific, medical, or a claim of coverage under the ADA. The determining required testing statistical evidence to support their assertion Department disagrees with the commenter’s accommodations, such an approach would that an impairment is substantially limiting reading of these provisions. Congress contradict the clear delineation in the statute compared to most people in the general recognized that some people may choose to between the determination of disability and population. Instead, other types of evidence support their claim by presenting scientific the obligations that ensue. that are less onerous to collect, such as or medical evidence and made clear that Accordingly, in the final rule, the text of statements or affidavits of affected ‘‘plaintiffs should not be constrained from these provisions is largely unchanged, except individuals, school records, or offering evidence needed to establish that that the provisions are renumbered as determinations of disability status under their impairment is substantially limiting.’’ §§ 35.108(d)(1)(vii) and 36.108(d)(1)(vii), and other statutes, should, in most cases, be See 154 Cong. Rec. S8842 (daily ed. Sept. 16, the Department added ‘‘the presentation of,’’ considered adequate to establish that an 2008) (Statement of the Managers). The in the second sentence, which was included impairment is substantially limiting. The language ‘‘where appropriate’’ allows for in the corresponding provision of the EEOC Department’s proposed language reflected those circumstances where an individual final rule. See 29 CFR 1630.2(j)(1)(v). Congress’s intent to ensure that individuals chooses to present such evidence, but makes with disabilities are not precluded from clear that in most cases presentation of such Sections 35.108(d)(1)(viii) and seeking protection under the ADA because of evidence shall not be necessary. 36.105(d)(1)(viii)—Determination Made an overbroad, burdensome, and generally Finally, although the NPRM did not Without Regard to the Ameliorative Effects of unnecessary requirement. propose any changes with respect to the title Mitigating Measures The Department received several III regulatory requirements applicable to the The ADA as amended expressly prohibits comments in support of these provisions and provision of testing accommodations at 28 any consideration of the ameliorative effects
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of mitigating measures when determining medication or auxiliary aids and services that not believe that additional language should whether an individual’s impairment might alleviate the effects of an impairment), be added to these rules of construction, substantially limits a major life activity, the availability of such measures has no which relate only to whether there is a six- except for the ameliorative effects of ordinary bearing on whether the impairment month test for the first two prongs of the eyeglasses or contact lenses. 42 U.S.C. substantially limits a major life activity. The definition. As discussed below, the 12102(4)(E). The statute provides an limitations posed by the impairment on the Department has revised both the regulatory illustrative, and non-exhaustive list of individual and any negative (non- text at §§ 35.108(f) and 36.105(f) and its different types of mitigating measures. Id. ameliorative) effects of mitigating measures guidance on the application of the ‘‘transitory In the NPRM, the Department proposed will serve as the foundation for a and minor’’ exception to the ‘‘regarded as’’ §§ 35.108(d)(2)(vi) and 36.105(d)(2)(vi), determination of whether an impairment is prong. See discussion below. which tracked the statutory language substantially limiting. The origin of the regarding consideration of mitigating impairment, whether its effects can be Sections 35.108(d)(2) and 36.105(d)(2)— measures. These provisions stated that the mitigated, and any ameliorative effects of Predictable Assessments ameliorative effects of mitigating measures mitigating measures that are employed may In the NPRM, proposed §§ 35.108(d)(2) and should not be considered when determining not be considered in determining if the 36.105(d)(2) set forth examples of whether an impairment substantially limits a impairment is substantially limiting. impairments that should easily be found to major life activity. However, the beneficial substantially limit one or more major life effects of ordinary eyeglasses or contact Sections 35.108(d)(1)(ix) and activities. These provisions recognized that lenses should be considered when 36.105(d)(1)(ix)—Impairment That Lasts Less while there are no ‘‘per se’’ disabilities, for determining whether an impairment Than Six Months Can Still Be a Disability certain types of impairments the application substantially limits a major life activity. Under First Two Prongs of the Definition of the various principles and rules of Ordinary eyeglasses or contact lenses refer to In §§ 35.108(d)(1)(ix) and 36.105(d)(1)(ix), construction concerning the definition of lenses that are intended to fully correct the NPRM proposed rules of construction ‘‘disability’’ to the individualized assessment visual acuity or to eliminate refractive errors. noting that the six-month ‘‘transitory’’ part of would, in virtually all cases, result in the Proposed §§ 35.108(d)(4) and 36.105(d)(4), the ‘‘transitory and minor’’ exception does conclusion that the impairment substantially discussed below, set forth examples of not apply to the ‘‘actual disability’’ or limits a major life activity. Thus, the mitigating measures. ‘‘record of’’ prongs of the definition of necessary individualized assessment of A number of commenters agreed with the ‘‘disability.’’ Even if an impairment may last coverage premised on these types of Department’s proposed language and no or is expected to last six months or less, it impairments should be particularly simple commenters objected. Some commenters, can be substantially limiting. and straightforward. The purpose of the however, asked the Department to add The ADA as amended provides that the ‘‘predictable assessments’’ provisions is to language to these sections stating that, ‘‘regarded as’’ prong of the definition of simplify consideration of those disabilities although the ameliorative effects of ‘‘disability’’ does ‘‘not apply to impairments that virtually always create substantial mitigating measures may not be considered that are [both] transitory and minor.’’ 42 limitations to major life activities, thus in determining whether an individual has a U.S.C. 12102(3)(B). ‘‘Transitory impairment’’ satisfying the statute’s directive to create covered disability, they may be considered in is defined as ‘‘an impairment with an actual clear, consistent, and enforceable standards determining whether an individual is or expected duration of six months or less.’’ and ensuring that the inquiry of ‘‘whether an entitled to specific testing accommodations Id. The statute does not define the term individual’s impairment is a disability under or reasonable modifications. The ADA ‘‘minor.’’ Whether an impairment is both the ADA should not demand extensive Amendments Act revised the definition of ‘‘transitory and minor’’ is a question of fact analysis.’’ See Public Law 110–325, sec. ‘‘disability’’ and the Department agrees that that is dependent upon individual 2(b)(1), (5). The impairments identified in the the Act’s prohibition on assessing the circumstances. The ADA as amended predictable assessments provision are a non- ameliorative effects of mitigating measures contains no such provision with respect to exhaustive list of examples of the kinds of applies only to the determination of whether the first two prongs of the definition of disabilities that meet these criteria and, with an individual meets the definition of ‘‘disability’’—‘‘actual disability,’’ and ‘‘record one exception, are consistent with the ‘‘disability.’’ The Department declines to add of’’ disability. The application of the corresponding provision in the EEOC ADA the requested language, however, because it ‘‘transitory and minor’’ exception to the Amendments Act rule. See 29 CFR goes beyond the scope of this rulemaking by ‘‘regarded as’’ prong is addressed in 1630.2(j)(3)(iii).7 addressing ADA requirements that are not §§ 35.108(f) and 36.105(f). The Department believes that the related to the definition of ‘‘disability.’’ The Department received two comments predictable assessments provisions comport These rules of construction do not apply to on this proposed language. One commenter with the ADA Amendments Act’s emphasis the requirements to provide reasonable recommended that the Department delete on adopting a less burdensome and more modifications under §§ 35.130(b)(7) and this language and ‘‘replace it with language expansive definition of ‘‘disability.’’ The 36.302 or testing accommodations under clarifying that if a condition cannot meet the provisions are rooted in the application of § 36.309 in the title III regulations. The lower threshold of impairment under the the statutory changes to the meaning and Department disagrees that further third prong, it cannot meet the higher interpretation of the definition of ‘‘disability’’ clarification is needed at this point and threshold of a disability under the first and contained in the ADA Amendments Act and declines to modify these provisions except second prongs.’’ The Department declines to flow from the rules of construction set forth that they are now renumbered as modify these provisions because the in §§ 35.108(a)(2)(i), 36.105(a)(2)(i), §§ 35.108(d)(1)(viii) and § 36.105(d)(1)(viii). determination of whether an individual 35.108(c)(2)(i) and (ii), 36.105(c)(2)(i) and (ii). The Department notes that in applying satisfies the requirements of a particular These rules of construction and other specific these rules of construction, evidence showing prong is not a comparative determination provisions require the broad construction of that an impairment would be substantially between the three means of demonstrating the definition of ‘‘disability’’ in favor of limiting in the absence of the ameliorative disability under the ADA. The Department expansive coverage to the maximum extent effects of mitigating measures could include believes that the suggested language would permitted by the terms of the ADA. In evidence of limitations that a person create confusion because there are significant addition, they lower the standard to be experienced prior to using a mitigating differences between the first two prongs and applied to ‘‘substantially limits,’’ making measure or evidence concerning the expected the third prong. In addition, the Department clear that an impairment need not prevent or course of a particular disorder absent believes its proposed language is in keeping significantly restrict an individual from mitigating measures. with the ADA Amendments Act and the performing a major life activity; clarify that The determination of whether an supporting legislative history. major life activities include major bodily individual’s impairment substantially limits The other commenter suggested that the functions; elucidate that impairments that are a major life activity is unaffected by an Department add language to provide greater individual’s choice to forgo mitigating clarity with respect to the application of the 7 In the NPRM, the Department proposed adding measures. For individuals who do not use a transitory and minor exception to the ‘‘traumatic brain injury’’ to the predictable mitigating measure (including, for example, ‘‘regarded as prong.’’ The Department does assessments list.
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episodic or in remission are disabilities if meet the definition of disability’’); 2008 Other commenters speaking as individuals they would be substantially limiting when Senate Statement of Managers at 3 or representing persons with disabilities active; and incorporate the requirement that (explaining that ‘‘we [we]re faced with a endorsed the inclusion of some impairments the ameliorative effects of mitigating situation in which physical or mental already on the list, including traumatic brain measures (other than ordinary eyeglasses or impairments that would previously have injury, sought the inclusion of additional contact lenses) must be disregarded in been found to constitute disabilities [under impairments, requested revisions to some assessing whether an individual has a the Rehabilitation Act] [we]re not considered descriptions of impairments, or asked for disability. disabilities’’ and citing individuals with changes to the examples of major life Several organizations representing persons impairments such as amputation, intellectual activities linked to specific impairments. with disabilities and the elderly, constituting disabilities, epilepsy, multiple sclerosis, Several commenters requested the the majority of commenters on these diabetes, muscular dystrophy, and cancer as expansion of the predictable assessments list, provisions, supported the inclusion of the examples). in particular to add specific learning predictable assessments provisions. One Some commenters asked the Department to disabilities. Some commenters pointed to the commenter expressed strong support for the add certain impairments to the predictable ADA Amendments Act’s legislative history, provision and recommended that it closely assessments list, while others asked the which included Representative Stark’s track the corresponding provision in the Department to remove certain impairments. remarks that specific learning disabilities are EEOC title I rule, while another noted its Commenters representing educational and ‘‘neurologically based impairments that value in streamlining individual assessments. testing institutions urged that, if the substantially limit the way these individuals In contrast, some commenters from Department did not delete the predictable perform major life activities, like reading or educational institutions and testing entities assessment provisions, then the list should learning, or the time it takes to perform such recommended the deletion of these be modified to remove any impairments that activities.’’ 154 Cong. Rec. H8291 (daily ed. provisions, expressing concern that it implies are not obvious or visible to third parties and Sept. 17, 2008). Others recommended that the existence of ‘‘per se’’ disabilities, contrary those for which functional limitations can some specific types of specific learning to congressional intent that each assertion of change over time. One commenter cited to a disabilities, including dyslexia, dyscalculia, disability should be considered on a case-by- pre-ADA Amendments Act reasonable dysgraphia, dyspraxia, and slowed case basis. The Department does not believe accommodations case, which included processing speed should be referenced as that the predictable assessment provisions language regarding the uncertainty facing predictable assessments. With respect to the constitutes a ‘‘per se’’ list of disabilities and employers in determining appropriate major life activities affected by specific will retain it. These provisions highlight, reasonable accommodations when mental learning disabilities, commenters noted that through a non-exhaustive list, impairments impairments often are not obvious and specific learning disabilities are that virtually always will be found to apparent to employers. See Wallin v. neurologically based and substantially limit Minnesota Dep’t of Corrections, 153 F.3d 681, substantially limit one or more major life learning, thinking, reading, communicating, 689 (8th Cir. 1998). This commenter activities. Such impairments still warrant and processing speed. suggested that certain impairments, individualized assessments, but any such Similarly, commenters recommended the including autism, depression, post-traumatic assessments should be especially simple and inclusion of ADHD, urging that it originates stress disorder, and obsessive-compulsive in the brain and affects executive function straightforward. disorder, should not be deemed predictable skills including organizing, planning, paying The legislative history of the ADA assessments because they are not attention, regulating emotions, and self- Amendments Act supports the Department’s immediately apparent to third parties. The approach in this area. In crafting the Act, Department disagrees with this commenter, monitoring. One commenter noted that if Congress hewed to the ADA definition of and believes that it is appropriate to include ADHD meets the criteria established in the ‘‘disability,’’ which was modeled on the these disabilities on the list of predictable DSM–5, then it would consistently meet the definition of ‘‘disability’’ in the assessments. Many disabilities are less criteria to establish disability under the ADA. Rehabilitation Act, and indicated that it obvious or may be invisible, such as cancer, The same commenter noted that ADHD is wanted courts to interpret the definition as diabetes, HIV infection, schizophrenia, brain based and affects the major life activity it had originally been construed. See H.R. intellectual disabilities, and traumatic brain of executive function. Another commenter Rep. No. 110–730, pt. 2, at 6 (2008). injury, as well as those identified by the suggested that ADHD should be included and Describing this goal, the legislative history commenter. The likelihood that an should be identified as limiting brain states that courts had interpreted the impairment will substantially limit one or function, learning, reading, concentrating, Rehabilitation Act definition ‘‘broadly to more major life activities is unrelated to thinking, communicating, interacting with include persons with a wide range of whether or not the disability is immediately others, and working. Other commenters physical and mental impairments such as apparent to an outside observer. Therefore, urged the inclusion of panic disorders, epilepsy, diabetes, multiple sclerosis, and the Department will retain the examples that anxiety disorder, cognitive disorder, and intellectual and developmental disabilities involve less apparent disabilities on the list post-concussive disorder. A number of . . . even where a mitigating measure—like of predictable assessments. commenters noted that the exclusion of medication or a hearing aid—might lessen The Department believes that the list impairments from the predictable their impact on the individual.’’ Id.; see also accurately illustrates impairments that assessments list could be seen as supporting id. at 9 (referring to individuals with virtually always will result in a substantial an inference that the impairments that are disabilities that had been covered under limitation of one or more major life activities. not mentioned should not easily be found to section 504 of the Rehabilitation Act and that The Department recognizes that impairments be disabilities. Congress intended to include under the are not always static and can result in The Department determined that it will ADA—‘‘people with serious health different degrees of functional limitation at retain the language it proposed in the NPRM conditions like epilepsy, diabetes, cancer, different times, particularly when mitigating and will not add or remove any impairments cerebral palsy, multiple sclerosis, intellectual measures are used. However, the ADA as from this list. As discussed above, the list is and developmental disabilities’’); id. at 6, n.6 amended anticipates variation in the extent identical to the EEOC’s predictable (citing cases also finding that cerebral palsy, to which impairments affect major life assessments list, at 29 CFR 1630.2(g)(3)(iii), hearing impairments, intellectual disabilities, activities, clarifying that impairments that are except that the Department’s NPRM added heart disease, and vision in only one eye episodic or in remission nonetheless are traumatic brain injury. The Department were disabilities under the Rehabilitation disabilities if they would be substantially received support for including traumatic Act); id. at 10 (citing testimony from Rep. limiting when active and requiring the brain injury and did not receive any Steny H. Hoyer, one of the original lead consideration of disabilities without regard to comments recommending the removal of sponsors of the ADA in 1990, stating that ameliorative mitigating measures. The traumatic brain injury from the list; thus, we ‘‘[w]e could not have fathomed that people Department does not believe that limiting the are retaining it in this final rule. with diabetes, epilepsy, heart conditions, scope of its provisions addressing predictable The Department’s decision to track the cancer, mental illnesses and other disabilities assessments only to those disabilities that EEOC’s list, with one minor exception, stems would have their ADA claims denied because would never vary in functional limitation in part from our intent to satisfy the they would be considered too functional to would be appropriate. congressional mandate for ‘‘clear, strong,
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consistent, enforceable standards.’’ A number Similarly, the Department added an ‘‘each’’ of factors that may be considered in of courts already have productively applied to §§ 35.108(d)(2)(iii)(K) and appropriate cases. To the extent that such the EEOC’s predictable assessments 36.105(d)(2)(iii)(K) to make clear that each of factors may be useful or relevant to show a provision, and the Department believes that the listed impairments substantially limits substantial limitation in a particular fact it will continue to serve as a useful, common- brain function. pattern, some or all of them (and related sense tool in promoting judicial efficiency. It Some commenters representing testing facts) may be considered, but evidence is important to note, however, that the failure entities and educational institutions sought relating to each of these factors often will not to include any impairment in the list of the insertion of language in the predictable be necessary to establish coverage. examples of predictable assessments does not assessment provisions that would indicate In the NPRM, proposed §§ 35.108(d)(3)(i) indicate that that impairment should be that individuals found to have disabilities are and 35.105(d)(3)(i) noted that the rules of subject to undue scrutiny. not, by virtue of a determination that they construction at §§ 35.108(d)(1) and Some commenters expressed concern have a covered disability, eligible for a 35.105(d)(1) should inform consideration of about the major life activities that the testing accommodation or a reasonable how individuals are substantially limited in Department attributed to particular modification. The Department agrees with major life activities. Sections 35.108(d)(3)(ii) impairments. Two commenters sought these commenters that the determination of and 36.105(d)(3)(ii) provided examples of revision of the major life activities attributed disability is a distinct determination separate how restrictions on condition, manner, or to intellectual disabilities, suggesting that it from the determination of the need for a duration might be interpreted and also would be more accurate to reference requested modification or a testing clarified that the negative or burdensome cognitive function and learning, instead of accommodation. The Department declines to side effects of medication or other mitigating reading, learning, and problem solving. One add the language suggested by the measures may be considered when commenter recommended attributing the commenters to §§ 35.108(d)(2) and determining whether an individual has a major life activity of brain function to autism 36.105(d)(2), however, because the disability. In §§ 35.108(d)(3)(iii) and rather than learning, social interaction, and requirements for reasonable modifications 36.105(d)(3)(iii), the proposed language set communicating. The Department determined are addressed separately in §§ 35.130(b)(7) forth a requirement to focus on how a major that it will follow the EEOC’s model and, and 36.302 of the title II and III regulations life activity is substantially limited, rather with respect to both intellectual disabilities and the requirements related to providing than on the ultimate outcome a person with and autism, it will reference the major bodily appropriate accommodations in testing and an impairment can achieve. function of brain function. By using the term licensing are found at § 36.309. The Department received comments on the ‘‘brain function’’ to describe the system condition, manner, or duration provision affected by various mental impairments, the Sections 35.108(d)(3) and 36.105(d)(3)— from advocacy groups for individuals with Department intends to capture functions Condition, Manner, or Duration disabilities, from academia, from education such as the brain’s ability to regulate thought Overview. Proposed §§ 35.108(d)(3) and and testing entities, and from interested processes and emotions. 36.105(d)(3), both titled ‘‘Condition, individuals. Several advocacy organizations The Department considers it important to manner[,] and duration,’’ addressed how for individuals with disabilities and private reiterate that, just as the list of impairments evidence related to condition, manner, or individuals noted that the section title’s in these sections is not comprehensive, the duration may be used to show how heading was inconsistent with the regulatory list of major bodily functions or other major impairments substantially limit major life text and sought the replacement of the ‘‘and’’ life activities linked to those impairments are activities. These principles were first in the section’s title, ‘‘Condition, manner, not exhaustive. The impairments identified addressed in the preamble to the 1991 rule. and duration,’’ with an ‘‘or.’’ Commenters in these sections, may affect a wide range of At that time, the Department noted that ‘‘[a] expressed concern that retaining the ‘‘and’’ in major bodily functions and other major life person is considered an individual with a the heading title would be inconsistent with activities. The Department’s specification of disability . . . when the individual’s congressional intent and would incorrectly certain major life activities with respect to important life activities are restricted as to suggest that individuals are subject to a three- particular impairments simply provides one the conditions, manner, or duration under part test and must demonstrate that an avenue by which a person might elect to which they can be performed in comparison impairment substantially limits a major life demonstrate that he or she has a disability. to most people.’’ 56 FR 35544, 35549 (July activity with respect to condition, manner, The Department recognizes that 26, 1991); see also S. Rep. No. 101–116, at and duration. The Department agrees that the impairments listed in §§ 35.108(d)(2) and 23 (1989). ‘‘and’’ used in the title of the proposed 36.105(d)(2) may substantially limit other These concepts were affirmed by Congress regulatory provision could lead to confusion major life activities in addition to those listed in the legislative history to the ADA and a misapplication of the law and has in the regulation. For example, diabetes may Amendments Act: ‘‘We particularly believe revised the title so it now reads ‘‘Condition, substantially limit major life activities that this test, which articulated an analysis manner, or duration.’’ Consistent with the including eating, sleeping, and thinking. that considered whether a person’s activities regulatory text, the revised heading makes Major depressive disorder may substantially are limited in condition, duration and clear that any one of the three descriptors— limit major life activities such as thinking, manner, is a useful one. We reiterate that ‘‘condition,’’ ‘‘manner,’’ or ‘‘duration’’—may concentrating, sleeping, and interacting with using the correct standard—one that is lower aid in demonstrating that an impairment others. Multiple sclerosis may substantially than the strict or demanding standard created substantially limits a major life activity or a limit major life activities such as walking, by the Supreme Court in Toyota—will make major bodily function. bending, and lifting. the disability determination an appropriate One commenter noted that the NPRM did threshold issue but not an onerous burden for Condition, Manner, or Duration not track the EEOC’s language with respect those seeking accommodations or In the NPRM, proposed §§ 35.108(d)(3)(i) to the manner in which it identified a major modifications. At the same time, plaintiffs and 36.105(d)(3)(i) noted that the application bodily function that is substantially limited should not be constrained from offering of the terms ‘‘condition’’ ‘‘manner,’’ or by epilepsy, muscular dystrophy, or multiple evidence needed to establish that their ‘‘duration’’ should at all times take into sclerosis in 29 CFR 1630.2(j)(3)(iii). While the impairment is substantially limiting.’’ 154 account the principles in § 35.108(d)(1) and EEOC listed each of these three impairments Cong. Rec. S8346 (Sept. 11, 2008). Noting its § 36.105(d)(1), respectively, which referred to individually, noting in each case that the continued reliance on the functional the rules of construction for ‘‘substantially major bodily function affected is neurological approach to defining disability, Congress limited.’’ The proposed regulatory text also function, at 29 CFR 1630.2(j)(3)(iii), the expressed its belief that requiring consistency included brief explanations of the meaning of NPRM grouped the three impairments and with the findings and purposes of the ADA the core terms, clarifying that in appropriate noted that they affect neurological function. Amendments Act would ‘‘establish[ ] an cases, it could be useful to consider, in In order to clarify that each of the three appropriate functionality test for determining comparison to most people in the general impairments may manifest a substantial whether an individual has a disability.’’ Id. population, the conditions under which an limitation of neurological function, the final While condition, manner, and duration are individual performs a major life activity; the rule incorporates ‘‘each’’ immediately not required factors that must be considered, manner in which an individual performs a following the list of the three impairments. the regulations clarify that these are the types major life activity; or the time it takes an
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individual to perform a major life activity, or Condition, Manner, or Duration Examples, impairment may substantially limit the for which the individual can perform a major Including Negative Effects of Mitigating ‘‘condition’’ or ‘‘manner’’ in which a major life activity. Measures life activity can be performed in a number of Several disability rights advocacy groups Proposed §§ 35.108(d)(3)(ii) and different ways. For example, the condition or and individuals supported the NPRM 36.105(d)(3)(ii) set forth examples of the manner in which a major life activity can be approach, with some referencing the value of types of evidence that might demonstrate performed may refer to how an individual pointing to the rules of construction and their condition, manner, or duration limitations, performs a major life activity; e.g., the relevance to condition, manner, or duration including the way an impairment affects the condition or manner under which a person considerations. Some commenters noted that operation of a major bodily function, the with an amputated hand performs manual it was helpful to highlight congressional difficulty or effort required to perform a tasks will likely be more cumbersome than the way that most people in the general intent that the definition of ‘‘disability’’ major life activity, the pain experienced population would perform the same tasks. should be broadly construed and not subject when performing a major life activity, and the length of time it takes to perform a major Condition or manner also may describe how to extensive analysis. Another commenter performance of a major life activity affects an recommended introducing a clarification life activity. These provisions also clarified that the non-ameliorative effects of mitigating individual with an impairment. For example, that, while the limitation imposed by an an individual whose impairment causes pain impairment must be important, it does not measures may be taken into account to demonstrate the impact of an impairment on or fatigue that most people would not need to rise to the level of severely or experience when performing that major life significantly restricting the ability to perform a major life activity. The Department’s discussion in the NPRM preamble noted that activity may be substantially limited. Thus, a major life activity. Some commenters the condition or manner under which sought additional guidance regarding the such non-ameliorative effects could include negative side effects of medicine, burdens someone with coronary artery disease meaning of the terms ‘‘condition,’’ ‘‘manner,’’ associated with following a particular performs the major life activity of walking and ‘‘duration’’ and recommended the treatment regimen, and complications that would be substantially limited if the addition of more illustrative examples. arise from surgery, among others. The individual experiences shortness of breath In response to commenters’ concerns, the preamble also provided further clarification and fatigue when walking distances that most Department has modified the regulatory text of the possible applications of condition, people could walk without experiencing in §§ 35.108(d)(3)(i) and 36.105(d)(3)(i) to manner, or duration analyses, along with such effects. An individual with specific reference all of the rules of construction several examples. Several commenters learning disabilities may need to approach rather than only those pertaining to supported the proposed rule’s incorporation reading or writing in a distinct manner or ‘‘substantially limited.’’ The Department also of language and examples offering insight under different conditions than most people added §§ 35.108(d)(3)(iv) and into the varied ways that limitations on in the general population, possibly 36.105(d)(3)(iv), further discussed below, to condition, manner, or duration could employing aids including verbalizing, clarify that the rules of construction will not demonstrate substantial limitation. One visualizing, decoding or phonology, such that always require analysis of condition, manner, commenter positively noted that the language the effort required could support a or duration, particularly with respect to regarding the ‘‘difficulty, effort, or time determination that the individual is certain impairments, such as those required to perform a major life activity’’ substantially limited in the major life activity referenced in paragraph (d)(2)(iii) could prove extremely helpful to individuals of reading or writing. (predictable assessments). With these asserting a need for testing accommodations, Condition or manner may refer to the changes, the Department believes that the as evidence previously presented regarding extent to which a major life activity, final rule more accurately reflects these factors was deemed insufficient to including a major bodily function, can be congressional intent. The Department also demonstrate the existence of a disability. performed. In some cases, the condition or believes that clarifying the application of the Some commenters requested the insertion of manner under which a major bodily function rules of construction to condition, manner, or additional examples and explanation in the can be performed may be substantially duration will contribute to consistent preamble about how condition, manner or limited when the impairment ‘‘causes the interpretation of the definition of ‘‘disability’’ duration principles could be applied under operation [of the bodily function] to over- and reduce inadvertent reliance on older the new rules of construction. Another produce or under-produce in some harmful cases that incorporate demanding standards commenter sought guidance on the specific fashion.’’ See H.R. Rep. No. 110–730, pt. 2, rejected by Congress in the ADA reference points that should be used when at 17 (2008). For example, the endocrine system of a person with type I diabetes does Amendments Act. drawing comparisons with most people in not produce sufficient insulin. For that It is the Department’s view that the rules the general population. The commenter offered the example of delays in reason, compared to most people in the of construction offer substantial guidance developmental milestones as a possible general population, the impairment of about how condition, manner, or duration referent in evaluating children with speech- diabetes substantially limits the major bodily must be interpreted so as to ensure the language disorders, but noted a lack of functions of endocrine function and expansive coverage intended by Congress. guidance regarding comparable referents for digestion. Traumatic brain injury Except for this clarification, the Department adults. The commenter also noted that substantially limits the condition or manner did not receive comments opposing the guidance is needed regarding what average or in which an individual’s brain functions by proposed regulatory text on condition, acceptable duration might be with respect to impeding memory and causing headaches, manner, or duration in §§ 35.108(d)(3)(i) and certain activities. An academic commenter confusion, or fatigue—each of which could 36.105(d)(3)(i) and did not make any other expressed support for the Department’s constitute a substantial limitation on the changes to these provisions. reference to individuals with learning major bodily function of brain function. Some commenters objected to language in impairments using certain self-mitigating ‘‘Duration’’ refers to the length of time an the preamble to the NPRM which suggested measures, such as extra time to study or individual can perform a major life activity that there might be circumstances in which taking an examination in a different format, or the length of time it takes an individual the consideration of condition, manner, or and the relevance of these measures to to perform a major life activity, as compared duration might not include comparisons to condition, manner, and duration. to most people in the general population. For most people in the general population. On The Department did not receive comments example, a person whose back or leg reconsideration, the Department recognizes opposing the NPRM language on condition, impairment precludes him or her from that this discussion could create confusion manner, or duration in §§ 35.108(d)(3)(ii) and standing for more than two hours without about the requirements. The Department 36.105(d)(3)(ii) and is not making any significant pain would be substantially believes that condition, manner, or duration changes to this language. The Department limited in standing, because most people can determinations should be drawn in contrast agrees that further explanation and examples stand for more than two hours without to most people in the general population, as as provided below regarding the concepts of significant pain. However, ‘‘[a] person who is indicated in the related rules of condition, manner, or duration will help can walk for 10 miles continuously is not construction, at §§ 35.108(d)(1)(v) and clarify how the ADA Amendments Act has substantially limited in walking merely 36.105(d)(1)(v). expanded the definition of ‘‘disability.’’ An because on the eleventh mile, he or she
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begins to experience pain because most relative to ‘‘most people.’’ When considering testing entities suggested that the Department people would not be able to walk eleven the condition, manner or duration in which had indicated support for their interest in miles without experiencing some an individual with a specific learning focusing on outcomes over process-related discomfort.’’ See 154 Cong. Rec. S8842 (daily disability performs a major life activity, it is obstacles in the NPRM preamble language ed. Sept. 16, 2008) (Statement of the critical to reject the assumption that an where the Department had noted that Managers) (quoting S. Rep. No. 101–116, at individual who performs well academically covered entities ‘‘may defeat a showing of 23 (1989)). Some impairments, such as or otherwise cannot be substantially limited substantial limitation by refuting whatever ADHD, may have two different types of in activities such as learning, reading, evidence the individual seeking coverage has impact on duration considerations. ADHD writing, thinking, or speaking. As such, the offered, or by offering evidence that shows frequently affects both an ability to sustain Committee rejects the findings in Price v. that an impairment does not impose a focus for an extended period of time and the National Board of Medical Examiners, substantial limitation on a major life speed with which someone can process Gonzales v. National Board of Medical activity.’’ NPRM, 79 FR 4839, 4847–48 (Jan. information. Each of these duration-related Examiners, and Wong v. Regents of 30, 2014). The commenters representing concerns could demonstrate that someone University of California. educational institutions and testing entities with ADHD, as compared to most people in The Committee believes that the urged the removal of §§ 35.108(d)(3)(iii) and the general population, takes longer to comparison of individuals with specific 36.105(d)(3)(iii) or, in the alternative, the complete major life activities such as reading, learning disabilities to ‘‘most people’’ is not insertion of language indicating that writing, concentrating, or learning. problematic unto itself, but requires a careful outcomes, such as grades and test scores The Department reiterates that, because the analysis of the method and manner in which indicating academic success, are relevant limitations created by certain impairments an individual’s impairment limits a major life evidence that should be considered when are readily apparent, it would not be activity. For the majority of the population, making disability determinations. necessary in such cases to assess the negative the basic mechanics of reading and writing In contrast, commenters representing side effects of a mitigating measure in do not pose extraordinary lifelong challenges; persons with disabilities and individual determining that a particular impairment rather, recognizing and forming letters and commenters expressed strong support for substantially limits a major life activity. For words are effortless, unconscious, automatic these provisions, noting that what an example, there likely would be no need to processes. Because specific learning individual can accomplish despite an consider the burden that dialysis treatment disabilities are neurologically-based impairment does not accurately reflect the imposes for someone with end-stage renal impairments, the process of reading for an obstacles an individual had to overcome disease because the impairment would allow individual with a reading disability (e.g., because of the impairment. One organization a simple and straightforward determination dyslexia) is word-by-word, and otherwise representing persons with disabilities noted that the individual is substantially limited in cumbersome, painful, deliberate and slow— that while individuals with disabilities have kidney function. throughout life. The Committee expects that achieved successes at work, in academia, and One commenter representing people with individuals with specific learning disabilities in other settings, their successes should not disabilities asked the Department to that substantially limit a major life activity create obstacles to addressing what they can recognize that, particularly with respect to will be better protected under the amended do ‘‘in spite of an impairment.’’ Commenters learning disabilities, on some occasions the Act. also expressed concerns that testing entities facts related to condition, manner, or H.R. Rep. No. 110–730 pt. 1, at 10–11 (2008). and educational institutions had failed to duration necessary to reach a diagnosis of a Sections 35.108(d)(3)(iii) and comply with the rules of construction or to learning disability also are sufficient to 36.105(d)(3)(iii) of the proposed rule revise prior policies and practices to comport establish that the affected individual has a reflected congressional intent and made clear with the new standards under the ADA as disability under the ADA. The Department that the outcome an individual with a amended. Some commenters asserted that agrees that the facts gathered to establish a disability is able to achieve is not testing entities improperly rejected diagnosis of an impairment may determinative of whether an individual is accommodation requests because the testing simultaneously satisfy the requirements for substantially limited in a major life activity. entities focused on test scores and outcomes demonstrating limitations on condition, Instead, an individual can demonstrate the rather than on how individuals learn; manner, or duration sufficient to show that extent to which an impairment affects the required severe levels of impairment; failed the impairment constitutes a disability. condition, manner, or duration in which the to disregard the helpful effect of self- individual performs a major life activity, mitigating measures; referenced participation Emphasis on Limitations Instead of such that it constitutes a substantial in extracurricular activities as evidence that Outcomes limitation. The ultimate outcome of an individuals did not have disabilities; and In passing the ADA Amendments Act, individual’s efforts should not undermine a argued that individuals diagnosed with Congress clarified that courts had claim of disability, even if the individual specific learning disabilities or ADHD in misinterpreted the ADA definition of ultimately is able to achieve the same or adulthood cannot demonstrate that they have ‘‘disability’’ by, among other things, similar result as someone without the a disability because their diagnosis occurred inappropriately emphasizing the capabilities impairment. too late. of people with disabilities to achieve certain The Department received several Commenters representing persons with outcomes. See 154 Cong. Rec. S8842 (daily comments on these provisions, with disabilities pointed to the discussion in the ed. Sept. 16, 2008) (Statement of the disability organizations and individuals legislative history about restoring a focus on Managers). For example, someone with a supporting the inclusion of these provisions process rather than outcomes with respect to learning disability may achieve a high level and some testing entities and an organization learning disabilities. They suggested that of academic success, but may nevertheless be representing educational institutions such a shift in focus also would be helpful substantially limited in one or more of the opposing them. The opponents argued that in evaluating ADHD. One commenter asked major life activities of reading, writing, academic performance and testing outcomes the Department to include a reference to speaking, or learning because of the are objective evidence that contradict ADHD and to explain that persons with additional time or effort he or she must findings of disability and that covered ADHD may achieve a high level of academic spend to read, speak, write, or learn entities must be able to focus on those success but may nevertheless be substantially compared to most people in the general outcomes in order to demonstrate whether an limited in one or more major life activities, population. As the House Education and impairment has contributed to a substantial such as reading, writing, speaking, Labor Committee Report emphasized: limitation. These commenters argued that the concentrating, or learning. A private citizen [S]ome courts have found that students evidence frequently offered by those making requested the addition of examples who have reached a high level of academic claims of disability that demonstrate the time demonstrating the application of these achievement are not to be considered or effort required to achieve a result, such as provisions because, in the commenter’s view, individuals with disabilities under the ADA, evidence of self-mitigating measures, there have been many problems with as such individuals may have difficulty informal accommodations, or recently decisions regarding individuals with learning demonstrating substantial limitation in the provided reasonable modifications, is disabilities and an inappropriate focus on major life activities of learning or reading inherently subjective and unreliable. The outcomes and test scores.
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The Department declines the request to accommodations or modifications is substantially limiting. See 154 Cong. Rec. add a specific reference to ADHD in these inherently subjective and should be afforded S8842 (daily ed. Sept. 16, 2008) (Statement provisions. The Department believes that the less consideration. Congress’s discussion of of the Managers). Such evidence may principles discussed above apply equally to the relevance of testing outcomes and grades comprise facts related to condition, manner, persons with ADHD as well as individuals clearly indicates that it did not consider them or duration. And, covered entities may defeat with other impairments. The provision definitive evidence of the existence or non- a showing of substantial limitation by already references an illustrative, but not existence of a disability. While tests and refuting whatever evidence the individual exclusive, example of an individual with a grades typically are numerical measures of seeking coverage has offered, or by offering learning disability. The Department believes performance, the capacity to quantify them evidence that shows that an impairment does that this example effectively illustrates the does not make them inherently more not impose a substantial limitation on a concern that has affected individuals with valuable with respect to proving or major life activity. However, a showing of other impairments due to an inappropriate disproving disability. To the contrary, substantial limitation is not defeated by facts emphasis on outcomes rather than how a Congress’s incorporation of rules of unrelated to condition, manner, or duration major life activity is limited. construction emphasizing broad coverage of that are not pertinent to the substantial Organizations representing testing and disabilities to the maximum extent limitation of a major life activity that the educational entities asked the Department to permitted, its direction that such individual has proffered. add regulatory language indicating that determinations should neither contemplate Sections 35.108(d)(4) and 36.105(d)(4)— testing-related outcomes, such as grades and ameliorative mitigating measures nor Examples of Mitigating Measures test scores, are relevant to disability demand extensive analysis, and its determinations under the ADA. The recognition of learned and adaptive The rules of construction set forth at Department has considered this proposal and modifications all support its openness for §§ 35.108(d)(1)(viii) and 36.105(d)(1)(viii) of declines to adopt it because it is inconsistent individuals with impairments to put forward the final rule make clear that the ameliorative with congressional intent. As discussed a wide range of evidence to demonstrate their effects of mitigating measures shall not be earlier in this section, Congress specifically disabilities. considered when determining whether an stated that the outcome an individual with a The Department believes that Congress impairment substantially limits a major life disability is able to achieve is not made its intention clear that the ADA’s activity. In the NPRM, proposed determinative of whether that individual has protections should encompass people for §§ 35.108(d)(4) and 36.105(d)(4) provided a a physical or mental impairment that whom the nature of their impairment non-inclusive list of mitigating measures, substantially limits a major life activity. The requires an assessment that focuses on how which includes medication, medical analysis of whether an individual with an they engage in major life activities, rather supplies, equipment, appliances, low-vision impairment has a disability is a fact-driven than the ultimate outcome of those activities. devices, prosthetics, hearing aids, cochlear analysis shaped by how an impairment has Beyond directly addressing this concern in implants and implantable hearing devices, substantially limited one or more major life the debate over the ADA Amendments Act, mobility devices, oxygen therapy equipment, activities or major bodily functions, Congress’s incorporation of the far-reaching and assistive technology. In addition, the considering those specifically asserted by the rules of construction, its explicit rejection of proposed regulation clarified that mitigating individual as well as any others that may the consideration of ameliorative mitigating measures can include ‘‘learned behavioral or apply. For example, if an individual with measures—including ‘‘learned behavioral or adaptive neurological modifications,’’ ADHD seeking a reasonable modification or adaptive neurological modifications,’’ 42 psychotherapy, behavioral therapy, or a testing accommodation asserts substantial U.S.C. 12102(4)(E)(i)(IV), such as those often physical therapy, and ‘‘reasonable limitations in the major life activities of employed by individuals with learning modifications’’ or auxiliary aids and services. concentrating and reading, then the analysis disabilities or ADHD—and its stated The phrase ‘‘learned behavioral or adaptive of whether or not that individual has a intention to ‘‘reinstat[e] a broad scope of neurological modifications,’’ is intended to covered disability will necessarily focus on protection to be available under the ADA,’’ include strategies developed by an individual concentrating and reading. Relevant Public Law 110–325, sec. 2(b)(1), all support to lessen the impact of an impairment. The considerations could include restrictions on the language initially proposed in these phrase ‘‘reasonable modifications’’ is the conditions, manner, or duration in which provisions. For these reasons, the Department intended to include informal or the individual concentrates or reads, such as determined that it will retain the language of undocumented accommodations and a need for a non-stimulating environment or these provisions as they were originally modifications as well as those provided extensive time required to read. Even if an drafted. through a formal process. individual has asserted that an impairment The ADA as amended specifies one creates substantial limitations on activities Analysis of Condition, Manner, or Duration exception to the rule on mitigating measures, such as reading, writing, or concentrating, Not Always Required stating that the ameliorative effects of the individual’s academic record or prior As noted in the discussion above, the ordinary eyeglasses and contact lenses shall standardized testing results might not be Department has added §§ 35.108(d)(3)(iv) and be considered in determining whether a relevant to the inquiry. Instead, the 36.105(d)(3)(iv) in the final rule to clarify that person has an impairment that substantially individual could show substantial limitations analysis of condition, manner, or duration limits a major life activity and thereby is a by providing evidence of condition, manner, will not always be necessary, particularly person with a disability. 42 U.S.C. or duration limitations, such as the need for with respect to certain impairments that can 12102(4)(E)(ii). As discussed above, a reader or additional time. The Department easily be found to substantially limit a major §§ 35.108(d)(4)(i) and 36.105(d)(4)(i) does not believe that the testing results or life activity. This language is also found in incorporate this exception by excluding grades of an individual seeking reasonable the EEOC ADA title I regulation. See 29 CFR ordinary eyeglasses and contact lenses from modifications or testing accommodations 1630(j)(4)(iv). As noted earlier, the inclusion the definition of ‘‘low-vision devices,’’ which always would be relevant to determinations of these provisions addresses several are mitigating measures that may not be of disability. While testing and educational comments from organizations representing considered in determining whether an entities may, of course, put forward any persons with disabilities. This language also impairment is a substantial limitation. evidence that they deem pertinent to their responds to several commenters’ concerns The Department received a number of response to an assertion of substantial that the Department should clarify that, in comments supporting the Department’s limitation, testing results and grades may be some cases and particularly with respect to language in these sections and its broad range of only limited relevance. predictable assessments, no or only a very of examples of what constitutes a mitigating In addition, the Department does not agree limited analysis of condition, manner, or measure. Commenters representing students with the assertions made by testing and duration is necessary. with disabilities specifically supported the educational entities that evidence of testing At the same time, individuals seeking inclusion of ‘‘learned behavioral or adaptive and grades is objective and, therefore, should coverage under the first or second prong of neurological modifications,’’ noting that the be weighted more heavily, while evidence of the definition of ‘‘disability’’ should not be section ‘‘appropriately supports and self-mitigating measures, informal constrained from offering evidence needed to highlights that students [and individuals in accommodations, or recently provided establish that their impairment is other settings] may have developed self-
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imposed ways to support their disability in mitigating measures used by individuals with impairment, then that individual will satisfy order to perform major life activities required ADHD, but believes that they fall within the the third prong of the definition of of daily life and that such measures cannot range of mitigating measures already ‘‘disability.’’ The NPRM also proposed be used to find that the person is not addressed by the regulatory language. adding paragraph (3), which provides that substantially limited.’’ Another commenter asked the Department ‘‘[a]n individual with a record of a The Department notes that self-mitigating to add language to the regulation or preamble substantially limiting impairment may be measures or undocumented modifications or addressing surgical interventions in a similar entitled to a reasonable modification if accommodations for students who have fashion to the approach taken in the EEOC’s needed and related to the past disability.’’ impairments that substantially limit learning, title I preamble, 76 FR 16978, 16983 (Mar. 25, The Department received no comments reading, writing, speaking, or concentrating 2011). There, the EEOC noted that a surgical objecting to its proposed language for these may include such measures as arranging to intervention may be an ameliorative provisions and has retained it in the final have multiple reminders for task completion; mitigating measure that could result in the rule. The Department received one comment seeking help from others to provide permanent elimination of an impairment, but requesting additional guidance on the reminders or to assist with the organization it also indicated that confusion about how meaning of these provisions. The Department of tasks; selecting courses strategically (such this example might apply recommended notes that Congress intended this prong of as selecting courses that require papers against its inclusion in the regulatory text. the definition of ‘‘disability’’ to ensure that instead of exams); devoting a far larger Therefore, the EEOC eliminated that example people are not discriminated against based portion of the day, weekends, and holidays from the draft regulatory text and on prior medical history. This prong is also to study than students without disabilities; recommended that, ‘‘[d]eterminations about intended to ensure that individuals are not teaching oneself strategies to facilitate whether surgical interventions should be discriminated against because they have been reading connected text or mnemonics to taken into consideration when assessing misclassified as an individual with a remember facts (including strategies such as whether an individual has a disability are disability. For example, individuals highlighting and margin noting); being better assessed on a case-by-case basis.’’ The misclassified as having learning disabilities permitted extra time to complete tests; Department agrees with the EEOC and or intellectual disabilities are protected from receiving modified homework assignments; underscores that surgical interventions may discrimination on the basis of that erroneous or taking exams in a different format or in a constitute mitigating measures that should classification. See H.R. Rep. No. 110–730, pt. less stressful or anxiety-provoking setting. not be considered in determining whether an 2, at 7–8 & n.14 (2008). Each of these mitigating measures, whether individual meets the definition of This prong of the definition is satisfied formal or informal, documented or ‘‘disability.’’ The Department declines to where evidence establishes that an undocumented, can improve the academic make any changes to its proposed regulatory individual has had a substantially limiting function of a student having to deal with a text for these sections of the final rule. impairment. The impairment indicated in the substantial limitation in a major life activity The ADA Amendments Act provides an record must be an impairment that would such as concentrating, reading, speaking, ‘‘illustrative but non-comprehensive list of substantially limit one or more of the learning, or writing. However, when the the types of mitigating measures that are not individual’s major life activities. The terms determination of disability is made without to be considered.’’ 154 Cong. Rec. S8842 ‘‘substantially limits’’ and ‘‘major life considering the ameliorative effects of these (daily ed. Sept. 16, 2008) (Statement of the activity’’ under the second prong of the measures, as required under the ADA as Managers) at 9; see also H.R. Rep. No. 110– definition of ‘‘disability’’ are to be construed amended, these individuals still have a 730, pt. 2, at 20 (2008). The absence of any in accordance with the same principles substantial limitation in major life activities particular mitigating measure should not applicable under the ‘‘actual disability’’ and are covered by the ADA. See also convey a negative implication as to whether prong, as set forth in §§ 35.108(b) and discussion of §§ 35.108(d)(1) and the measure is a mitigating measure under 36.105(b). 36.105(d)(1), above. the ADA. Id. This principle applies equally There are many types of records that could Some commenters argued that the to the non-exhaustive list in §§ 35.108(d)(4) potentially contain this information, Department’s examples of mitigating and 36.105(d)(4). including but not limited to, education, measures inappropriately include normal medical, or employment records. The learning strategies and asked that the Sections 35.108(e) and 36.105(e)—Has a Department notes that past history of an Department withdraw or narrow its Record of Such an Impairment impairment need not be reflected in a discussion of self-mitigating measures. The The second prong of the definition of specific document. Any evidence that an Department disagrees. Narrowing the ‘‘disability’’ under the ADA provides that an individual has a past history of an discussion of self-mitigating measures to individual with a record of an impairment impairment that substantially limited a major exclude normal or common strategies would that substantially limits or limited a major life activity is all that is necessary to not be consistent with the ADA Amendments life activity is an individual with a disability. establish coverage under the second prong. Act. The Department construes learned 42 U.S.C. 12102(1)(B). An individual may have a ‘‘record of’’ a behavioral or adaptive neurological Paragraph (3) of the definition of substantially limiting impairment—and thus modifications broadly to include strategies ‘‘disability’’ in the existing title II and title III establish coverage under the ‘‘record of’’ applied or utilized by an individual with a regulations states that the phrase ‘‘has a prong of the statute—even if a covered entity disability to lessen the effect of an record of such an impairment’’ means has a does not specifically know about the relevant impairment; whether the strategy applied is history of, or has been misclassified as record. For the covered entity to be liable for normal or common to students without having, a mental or physical impairment that discrimination under the ADA, however, the disabilities is not relevant to whether an substantially limits one or more major life individual with a ‘‘record of’’ a substantially individual with a disability’s application of activities. 28 CFR 35.104, 36.104. The NPRM limiting impairment must prove that the the strategy lessens the effect of an proposed keeping the language in the title II covered entity discriminated on the basis of impairment. and title III regulations (with minor editorial the record of the disability. An additional commenter asked the changes) but to renumber it as §§ 35.108(e)(1) Individuals who are covered under the Department to add language to the regulation and 36.105(e)(1). In addition, the NPRM ‘‘record of’’ prong may be covered under the and preamble addressing mitigating measures proposed adding a new second paragraph first prong of the definition of ‘‘disability’’ as an individual with ADHD may employ. This stating that any individual’s assertion of a well. This is because the rules of commenter noted that ‘‘[a]n individual with record of impairment that substantially limits construction in the ADA Amendments Act ADHD may employ a wide variety of self- a major life activity should be broadly and the Department’s regulations provide mitigating measures, such as exertion of construed to the maximum extent permitted that an individual with an impairment that extensive extra effort, use of multiple by the ADA and should not require extensive is episodic or in remission can be protected reminders, whether low tech or high tech, analysis. If an individual has a history of an under the first prong if the impairment seeking a quiet or distraction free place or impairment that substantially limited one or would be substantially limiting when active. environment to do required activities.’’ The more major life activities when compared to See §§ 35.108(d)(1)(iv); 36.105(d)(1)(iv). Department agrees with this commenter that most people in the general population or was Thus, an individual who has cancer that is these are examples of the type of self- misclassified as having had such an currently in remission is an individual with
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a disability under the ‘‘actual disability’’ holding that individuals who asserted impairment, stating that a ‘‘transitory prong because he has an impairment that coverage under the ‘‘regarded as having such impairment is an impairment with an actual would substantially limit normal cell growth an impairment’’ prong had to establish either or expected duration of six months or less.’’ when active. He is also covered by the that the covered entity mistakenly believed The ‘‘transitory and minor’’ exception was ‘‘record of’’ prong based on his history of that the individual had a physical or mental not in the third prong in the original having had an impairment that substantially impairment that substantially limited a major statutory definition of ‘‘disability.’’ Congress limited normal cell growth. life activity, or that the covered entity added this exception to address concerns Finally, these provisions of the regulations mistakenly believed that ‘‘an actual, raised by the business community that clarify that an individual with a record of a nonlimiting impairment substantially ‘‘absent this exception, the third prong of the disability is entitled to a reasonable limit[ed]’’ a major life activity, when in fact definition would have covered individuals modification currently needed relating to the the impairment was not so limiting. Id. at who are regarded as having common past substantially limiting impairment. In the 489. Congress expressly rejected this ailments like the cold or flu.’’ See H.R. Rep. legislative history, Congress stated that standard in the ADA Amendments Act by No. 110–730, pt. 2, at 18 (2008). However, as reasonable modifications were available to amending the ADA to clarify that it is an exception to the general rule for broad persons covered under the second prong of sufficient for an individual to establish that coverage under the ‘‘regarded as’’ prong, this the definition. See H.R. Rep. No. 110–730, pt. the covered entity regarded him or her as limitation on coverage should be construed 2, at 22 (2008) (‘‘This makes clear that the having an impairment, regardless of whether narrowly. Id. The ADA Amendments Act did duty to accommodate . . . arises only when the individual actually has the impairment or not define ‘‘minor.’’ an individual establishes coverage under the whether the impairment constitutes a In addition, proposed §§ 35.108(f)(2) and first or second prong of the definition.’’). For disability under the Act. 42 U.S.C. 36.105(f)(2) stated that any time a public example, a high school student with an 12102(3)(A). This amendment restores entity or covered entity takes a prohibited impairment that previously substantially Congress’s intent to allow individuals to action because of an individual’s actual or limited, but no longer substantially limits, a establish coverage under the ‘‘regarded as’’ perceived impairment, even if the entity major life activity may need permission to prong by showing that they were treated asserts, or may or does ultimately establish, miss a class or have a schedule change as a adversely because of an actual or perceived a defense to such action, that individual is reasonable modification that would permit impairment without having to establish the ‘‘regarded as’’ having such an impairment. him or her to attend follow-up or monitoring covered entity’s beliefs concerning the Commenters on these provisions appointments from a health care provider. severity of the impairment. See H.R. Rep. No. recommended that the Department revise its 110–730, pt. 2, at 18 (2008). language to clarify that the determination of Sections 35.108(f) and 36.105(f)—Is Regarded Thus, under the ADA as amended, it is not whether an impairment is in fact ‘‘transitory as Having Such an Impairment necessary, as it was prior to the ADA and minor’’ is an objective determination and The ‘‘regarded as having such an Amendments Act and following the Supreme that a covered entity may not defeat impairment’’ prong of the definition of Court’s decision in Sutton, for an individual ‘‘regarded as’’ coverage of an individual ‘‘disability’’ was included in the ADA to demonstrate that a covered entity simply by demonstrating that it subjectively specifically to protect individuals who might perceived him as substantially limited in the believed that the impairment is transitory not meet the first two prongs of the ability to perform a major life activity in and minor. In addition, a number of definition, but who were subject to adverse order for the individual to establish that he commenters cited the EEOC title I rule at 29 decisions by covered entities based upon or she is covered under the ‘‘regarded as’’ CFR 1630.15(f) and asked the Department to unfounded concerns, mistaken beliefs, fears, prong. Nor is it necessary to demonstrate that clarify that ‘‘the issue of whether an actual myths, or prejudices about persons with the impairment relied on by a covered entity or perceived impairment is ‘transitory and disabilities. See 154 Cong. Rec. S8842 (daily is (in the case of an actual impairment) or minor’ is an affirmative defense and not part ed. Sept. 16, 2008) (Statement of the would be (in the case of a perceived of the plaintiff’s burden of proof.’’ The Managers). The rationale for the ‘‘regarded impairment) substantially limiting for an Department agrees with these commenters as’’ part of the definition of ‘‘disability’’ was individual to be ‘‘regarded as having such an and has revised paragraphs (1) and (2) of articulated by the Supreme Court in the impairment.’’ In short, to be covered under these sections for clarity, as shown in context of section 504 of the Rehabilitation the ‘‘regarded as’’ prong, an individual is not §§ 35.108(f)(2) and 36.105(f)(2) of the final Act of 1973 in School Board of Nassau subject to any functional test. See 154 Cong. rule. County v. Arline, 480 U.S. 273 (1987). In Rec. S8843 (daily ed. Sept. 16, 2008) The revised language makes clear that the Arline, the Court noted that, although an (Statement of the Managers) (‘‘The functional relevant inquiry under these sections is individual may have an impairment that does limitation imposed by an impairment is whether the actual or perceived impairment not diminish his or her physical or mental irrelevant to the third ‘regarded as’ prong.’’); that is the basis of the covered entity’s action capabilities, it could ‘‘nevertheless H.R. Rep. No. 110–730, pt. 2, at 17 (2008) is objectively ‘‘transitory and minor,’’ not substantially limit that person’s ability to (‘‘[T]he individual is not required to show whether the covered entity claims it work as a result of the negative reactions of that the perceived impairment limits subjectively believed the impairment was others to the impairment.’’ Id. at 283. Thus, performance of a major life activity.’’) The transitory and minor. For example, a private individuals seeking the protection of the concepts of ‘‘major life activities’’ and school that expelled a student whom it ADA under the ‘‘regarded as’’ prong only had ‘‘substantial limitation’’ simply are not believes has bipolar disorder cannot take to show that a covered entity took some relevant in evaluating whether an individual advantage of this exception by asserting that action prohibited by the statute because of an is ‘‘regarded as having such an impairment.’’ it believed the student’s impairment was actual or perceived impairment. At the time In the NPRM, the Department proposed transitory and minor, because bipolar of the Arline decision, there was no §§ 35.108(f)(1) and 36.105(f)(1), which are disorder is not objectively transitory and requirement that the individual demonstrate intended to restore the meaning of the minor. Similarly, a public swimming pool that he or she, in fact, had or was perceived ‘‘regarded as’’ prong of the definition of that refused to admit an individual with a to have an impairment that substantially ‘‘disability’’ by adding language that skin rash, mistakenly believing the rash to be limited a major life activity. See 154 Cong. incorporates the amended statutory symptomatic of HIV, will have ‘‘regarded’’ Rec. S8842 (daily ed. Sept. 16, 2008) provision: ‘‘An individual is ‘regarded as the individual as having a disability. It is not (Statement of the Managers). For example, if having such an impairment’ if the individual a defense to coverage that the skin rash was a daycare center refused to admit a child is subjected to an action prohibited by the objectively transitory and minor because the with burn scars because of the presence of ADA because of an actual or perceived covered entity took the prohibited action the scars, then the daycare center regarded physical or mental impairment, whether or based on a perceived impairment, HIV, that the child as an individual with a disability, not that impairment substantially limits, or is is not transitory and minor. regardless of whether the child’s scars perceived to substantially limit, a major life The revised regulatory text also makes substantially limited a major life activity. activity, except for an impairment that is clear that the ‘‘transitory and minor’’ In Sutton v. United Air Lines, Inc., 527 U.S. both transitory and minor.’’ exception to a ‘‘regarded as’’ claim is a 471 (1999), the Supreme Court significantly The proposed provisions also incorporate defense to a claim of discrimination and not narrowed the application of this prong, the statutory definition of transitory part of an individual’s prima facie case. The
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Department reiterates that to fall within this disability.’’ These provisions clarify that the PART 36—NONDISCRIMINATION ON exception, the actual or perceived duty to provide reasonable modifications THE BASIS OF DISABILITY BY PUBLIC impairment must be both transitory (less than arises only when the individual establishes ACCOMMODATIONS AND IN six months in duration) and minor. For coverage under the first or second prong of COMMERCIAL FACILITIES example, an individual with a minor back the definition of ‘‘disability.’’ These injury could be ‘‘regarded as’’ an individual provisions are not intended to diminish the ■ 7. Revise the authority citation for part with a disability if the back impairment existing obligations to provide reasonable lasted or was anticipated to last more than 36 to read as follows: modifications under title II and title III of the six months. The Department notes that the Authority: 5 U.S.C. 301; 28 U.S.C. 509, revised regulatory text is consistent with the ADA. 510; 42 U.S.C. 12186(b) and 12205a. The Department received no comments EEOC rule which added the transitory and ■ 8. Revise § 36.101 to read as follows: minor exception to its general affirmative associated with these provisions and retains defense provision in its title I ADA regulation the NPRM language in the final rule except § 36.101 Purpose and broad coverage. at 29 CFR 1630.15(f). Finally, in the NPRM, for replacing the words ‘‘covered entity’’ with (a) Purpose. The purpose of this part the Department proposed §§ 35.108(f)(3) and ‘‘public accommodation’’ in § 36.302(g). is to implement subtitle A of title III of 36.105(f)(3) which provided that an individual who is ‘‘regarded as having such Sections 35.130(i) and 36.201(c)—Claims of the Americans with Disabilities Act of an impairment’’ does not establish liability No Disability 1990 (42 U.S.C. 12181–12189), as based on that alone. Instead, an individual The ADA as amended provides that amended by the ADA Amendments Act can establish liability only when an ‘‘[n]othing in this [Act] shall provide the of 2008 (ADA Amendments Act) (Pub. individual proves that a private entity or basis for a claim by an individual without a L. 110–325, 122 Stat. 3553 (2008)), covered entity discriminated on the basis of disability that the individual was subject to which prohibits discrimination on the disability within the meaning of the ADA. discrimination because of the individual’s basis of disability by covered public This provision was intended to make it clear lack of disability.’’ 42 U.S.C. 12201(g). In the accommodations and requires places of that in order to establish liability, an NPRM the Department proposed adding public accommodation and commercial individual must establish coverage as a facilities to be designed, constructed, person with a disability, as well as establish §§ 35.130(i) and 36.201(c) to the title II and that he or she had been subjected to an action title III regulations, respectively, which and altered in compliance with the prohibited by the ADA. incorporate similar language. These accessibility standards established by The Department received no comments on provisions clarify that persons without this part. the language in these paragraphs. Upon disabilities do not have an actionable claim (b) Broad coverage. The primary consideration, in the final rule, the under the ADA on the basis of not having a purpose of the ADA Amendments Act is Department has decided to retain the disability. to make it easier for people with regulatory text for §§ 35.108(f)(3) and The Department received no comments disabilities to obtain protection under 36.105(f)(3) except that the reference to associated with this issue and has retained the ADA. Consistent with the ADA ‘‘covered entity’’ in the title III regulatory text these provisions in the final rule. Amendments Act’s purpose of is changed to ‘‘public accommodation.’’ reinstating a broad scope of protection Effect of ADA Amendments Act on Academic Sections 35.108(g) and 36.105(g)—Exclusions Requirements in Postsecondary Education under the ADA, the definition of ‘‘disability’’ in this part shall be The NPRM did not propose changes to the The Department notes that the ADA text of the existing exclusions contained in construed broadly in favor of expansive Amendments Act revised the rules of paragraph (5) of the definition of ‘‘disability’’ coverage to the maximum extent in the title II and title III regulations, see 28 construction in title V of the ADA by permitted by the terms of the ADA. The CFR 35.104, 36.104, which are based on 42 including a provision affirming that nothing primary object of attention in cases U.S.C. 12211(b), a statutory provision that in the Act changed the existing ADA brought under the ADA should be was not modified by the ADA Amendments requirement that covered entities provide whether entities covered under the ADA reasonable modifications in policies, Act. The NPRM did propose to renumber have complied with their obligations these provisions, relocating them at practices, or procedures unless the entity can and whether discrimination has §§ 35.108(g) and 36.105(g) of the demonstrate that making such modifications, occurred, not whether the individual Department’s revised definition of including academic requirements in meets the definition of ‘‘disability.’’ The ‘‘disability.’’ The Department received no postsecondary education, would comments on the proposed renumbering, fundamentally alter the nature of goods, question of whether an individual meets which is retained in the final rule. services, facilities, privileges, advantages, or the definition of ‘‘disability’’ under this part should not demand extensive Sections 35.130(b)(7)(i)—General accommodations involved. See 42 U.S.C. Prohibitions Against Discrimination and 12201(f). Congress noted that the reference to analysis. 36.302(g)—Modifications in Policies, academic requirements in postsecondary ■ 9. Amend § 36.104 by revising the Practices, or Procedures education was included ‘‘solely to provide definition of ‘‘Disability’’ to read as The ADA Amendments Act revised the assurances that the bill does not alter current follows: law with regard to the obligations of ADA to specify that a public entity under § 36.104 Definitions. title II, and any person who owns, leases (or academic institutions under the ADA, which leases to), or operates a place of public we believe is already demonstrated in case * * * * * accommodation under title III, ‘‘need not law on this topic. Specifically, the reference Disability. The definition of disability provide a reasonable accommodation or a to academic standards in post-secondary can be found at § 36.105. reasonable modification to policies, education is unrelated to the purpose of this * * * * * practices, or procedures to an individual who legislation and should be given no meaning ■ 10. Add § 36.105 to subpart A to read meets the definition of disability’’ solely on in interpreting the definition of disability.’’ the basis of being regarded as having an as follows: 154 Cong. Rec. S8843 (daily ed. Sept. 16, impairment. 42 U.S.C. 12201(h). In the § 36.105 Definition of ‘‘disability.’’ NPRM, the Department proposed 2008) (Statement of the Managers). Given that §§ 35.130(b)(7)(i) and 36.302(g) to reflect this Congress did not intend there to be any (a)(1) Disability means, with respect to concept, explaining that a public entity or change to the law in this area, the an individual: covered entity ‘‘is not required to provide a Department did not propose to make any (i) A physical or mental impairment reasonable modification to an individual who changes to its regulatory requirements in that substantially limits one or more of meets the definition of disability solely under response to this provision of the ADA the major life activities of such the ‘regarded as’ prong of the definition of Amendments Act. individual;
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(ii) A record of such an impairment; dyslexia and other specific learning in order to be considered a substantially or disabilities, Attention Deficit limiting impairment. (iii) Being regarded as having such an Hyperactivity Disorder, Human (iv) An impairment that is episodic or impairment as described in paragraph Immunodeficiency Virus infection in remission is a disability if it would (f) of this section. (whether symptomatic or substantially limit a major life activity (2) Rules of construction. (i) The asymptomatic), tuberculosis, drug when active. definition of ‘‘disability’’ shall be addiction, and alcoholism. (v) An impairment is a disability construed broadly in favor of expansive (3) Physical or mental impairment within the meaning of this part if it coverage, to the maximum extent does not include homosexuality or substantially limits the ability of an permitted by the terms of the ADA. bisexuality. individual to perform a major life (ii) An individual may establish (c)(1) Major life activities include, but activity as compared to most people in coverage under any one or more of the are not limited to: the general population. An impairment three prongs of the definition of (i) Caring for oneself, performing does not need to prevent, or ‘‘disability’’ in paragraph (a)(1) of this manual tasks, seeing, hearing, eating, significantly or severely restrict, the section, the ‘‘actual disability’’ prong in sleeping, walking, standing, sitting, individual from performing a major life paragraph (a)(1)(i) of this section, the reaching, lifting, bending, speaking, activity in order to be considered ‘‘record of’’ prong in paragraph (a)(1)(ii) breathing, learning, reading, substantially limiting. Nonetheless, not of this section, or the ‘‘regarded as’’ concentrating, thinking, writing, every impairment will constitute a prong in paragraph (a)(1)(iii) of this communicating, interacting with others, disability within the meaning of this section. and working; and section. (iii) Where an individual is not (vi) The determination of whether an (ii) The operation of a major bodily challenging a public accommodation’s impairment substantially limits a major function, such as the functions of the failure to provide reasonable life activity requires an individualized immune system, special sense organs modifications under § 36.302, it is assessment. However, in making this and skin, normal cell growth, and generally unnecessary to proceed under assessment, the term ‘‘substantially digestive, genitourinary, bowel, bladder, the ‘‘actual disability’’ or ‘‘record of’’ limits’’ shall be interpreted and applied prongs, which require a showing of an neurological, brain, respiratory, to require a degree of functional impairment that substantially limits a circulatory, cardiovascular, endocrine, limitation that is lower than the major life activity or a record of such an hemic, lymphatic, musculoskeletal, and standard for substantially limits applied impairment. In these cases, the reproductive systems. The operation of prior to the ADA Amendments Act. evaluation of coverage can be made a major bodily function includes the (vii) The comparison of an solely under the ‘‘regarded as’’ prong of operation of an individual organ within individual’s performance of a major life the definition of ‘‘disability,’’ which a body system. activity to the performance of the same does not require a showing of an (2) Rules of construction. (i) In major life activity by most people in the impairment that substantially limits a determining whether an impairment general population usually will not major life activity or a record of such an substantially limits a major life activity, require scientific, medical, or statistical impairment. An individual may choose, the term major shall not be interpreted evidence. Nothing in this paragraph however, to proceed under the ‘‘actual strictly to create a demanding standard. (d)(1) is intended, however, to prohibit disability’’ or ‘‘record of’’ prong (ii) Whether an activity is a major life or limit the presentation of scientific, regardless of whether the individual is activity is not determined by reference medical, or statistical evidence in challenging a public accommodation’s to whether it is of central importance to making such a comparison where failure to provide reasonable daily life. appropriate. modifications. (d) Substantially limits—(1) Rules of (viii) The determination of whether an (b)(1) Physical or mental impairment construction. The following rules of impairment substantially limits a major means: construction apply when determining life activity shall be made without (i) Any physiological disorder or whether an impairment substantially regard to the ameliorative effects of condition, cosmetic disfigurement, or limits an individual in a major life mitigating measures. However, the anatomical loss affecting one or more activity. ameliorative effects of ordinary body systems, such as: Neurological, (i) The term ‘‘substantially limits’’ eyeglasses or contact lenses shall be musculoskeletal, special sense organs, shall be construed broadly in favor of considered in determining whether an respiratory (including speech organs), expansive coverage, to the maximum impairment substantially limits a major cardiovascular, reproductive, digestive, extent permitted by the terms of the life activity. Ordinary eyeglasses or genitourinary, immune, circulatory, ADA. ‘‘Substantially limits’’ is not contact lenses are lenses that are hemic, lymphatic, skin, and endocrine; meant to be a demanding standard. intended to fully correct visual acuity or or (ii) The primary object of attention in to eliminate refractive error. (ii) Any mental or psychological cases brought under title III of the ADA (ix) The six-month ‘‘transitory’’ part of disorder such as intellectual disability, should be whether public the ‘‘transitory and minor’’ exception in organic brain syndrome, emotional or accommodations have complied with paragraph (f)(2) of this section does not mental illness, and specific learning their obligations and whether apply to the ‘‘actual disability’’ or disability. discrimination has occurred, not the ‘‘record of’’ prongs of the definition of (2) Physical or mental impairment extent to which an individual’s ‘‘disability.’’ The effects of an includes, but is not limited to, impairment substantially limits a major impairment lasting or expected to last contagious and noncontagious diseases life activity. Accordingly, the threshold less than six months can be and conditions such as the following: issue of whether an impairment substantially limiting within the Orthopedic, visual, speech and hearing substantially limits a major life activity meaning of this section for establishing impairments, and cerebral palsy, should not demand extensive analysis. an actual disability or a record of a epilepsy, muscular dystrophy, multiple (iii) An impairment that substantially disability. sclerosis, cancer, heart disease, diabetes, limits one major life activity does not (2) Predictable assessments. (i) The intellectual disability, emotional illness, need to limit other major life activities principles set forth in the rules of
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construction in this section are intended individual is substantially limited in a ordinary eyeglasses or contact lenses), to provide for more generous coverage major life activity, it may be useful in prosthetics including limbs and devices, and application of the ADA’s appropriate cases to consider, as hearing aid(s) and cochlear implant(s) or prohibition on discrimination through a compared to most people in the general other implantable hearing devices, framework that is predictable, population, the conditions under which mobility devices, and oxygen therapy consistent, and workable for all the individual performs the major life equipment and supplies; individuals and entities with rights and activity; the manner in which the (ii) Use of assistive technology; responsibilities under the ADA. individual performs the major life (iii) Reasonable modifications or (ii) Applying these principles, the activity; or the duration of time it takes auxiliary aids or services as defined in individualized assessment of some the individual to perform the major life this regulation; types of impairments will, in virtually activity, or for which the individual can (iv) Learned behavioral or adaptive all cases, result in a determination of perform the major life activity. neurological modifications; or coverage under paragraph (a)(1)(i) of (ii) Consideration of facts such as (v) Psychotherapy, behavioral this section (the ‘‘actual disability’’ condition, manner, or duration may therapy, or physical therapy. prong) or paragraph (a)(1)(ii) of this include, among other things, (e) Has a record of such an section (the ‘‘record of’’ prong). Given consideration of the difficulty, effort or impairment. (1) An individual has a their inherent nature, these types of time required to perform a major life record of such an impairment if the impairments will, as a factual matter, activity; pain experienced when individual has a history of, or has been virtually always be found to impose a performing a major life activity; the misclassified as having, a mental or substantial limitation on a major life length of time a major life activity can physical impairment that substantially activity. Therefore, with respect to these be performed; or the way an impairment limits one or more major life activities. types of impairments, the necessary affects the operation of a major bodily (2) Broad construction. Whether an individualized assessment should be function. In addition, the non- individual has a record of an particularly simple and straightforward. ameliorative effects of mitigating impairment that substantially limited a (iii) For example, applying these measures, such as negative side effects major life activity shall be construed principles it should easily be concluded of medication or burdens associated broadly to the maximum extent that the types of impairments set forth with following a particular treatment permitted by the ADA and should not in paragraphs (d)(2)(iii)(A) through (K) regimen, may be considered when demand extensive analysis. An of this section will, at a minimum, determining whether an individual’s individual will be considered to fall substantially limit the major life impairment substantially limits a major within this prong of the definition of activities indicated. The types of life activity. ‘‘disability’’ if the individual has a impairments described in this paragraph (iii) In determining whether an history of an impairment that may substantially limit additional major individual has a disability under the substantially limited one or more major life activities (including major bodily ‘‘actual disability’’ or ‘‘record of’’ prongs life activities when compared to most functions) not explicitly listed in of the definition of ‘‘disability,’’ the people in the general population, or was paragraphs (d)(2)(iii)(A) through (K). focus is on how a major life activity is misclassified as having had such an (A) Deafness substantially limits substantially limited, and not on what impairment. In determining whether an hearing; outcomes an individual can achieve. For impairment substantially limited a (B) Blindness substantially limits example, someone with a learning major life activity, the principles seeing; disability may achieve a high level of articulated in paragraph (d)(1) of this (C) Intellectual disability substantially academic success, but may nevertheless section apply. limits brain function; be substantially limited in one or more (3) Reasonable modification. An (D) Partially or completely missing major life activities, including, but not individual with a record of a limbs or mobility impairments requiring limited to, reading, writing, speaking, or substantially limiting impairment may the use of a wheelchair substantially learning because of the additional time be entitled to a reasonable modification limit musculoskeletal function; or effort he or she must spend to read, if needed and related to the past (E) Autism substantially limits brain write, speak, or learn compared to most disability. function; people in the general population. (f) Is regarded as having such an (F) Cancer substantially limits normal (iv) Given the rules of construction set impairment. The following principles cell growth; forth in this section, it may often be apply under the ‘‘regarded as’’ prong of (G) Cerebral palsy substantially limits unnecessary to conduct an analysis the definition of ‘‘disability’’ (paragraph brain function; involving most or all of the facts related (a)(1)(iii) of this section): (H) Diabetes substantially limits to condition, manner, or duration. This (1) Except as set forth in paragraph endocrine function; is particularly true with respect to (f)(2) of this section, an individual is (I) Epilepsy, muscular dystrophy, and impairments such as those described in ‘‘regarded as having such an multiple sclerosis each substantially paragraph (d)(2)(iii) of this section, impairment’’ if the individual is limits neurological function; which by their inherent nature should subjected to a prohibited action because (J) Human Immunodeficiency Virus be easily found to impose a substantial of an actual or perceived physical or (HIV) infection substantially limits limitation on a major life activity, and mental impairment, whether or not that immune function; and for which the individualized assessment impairment substantially limits, or is (K) Major depressive disorder, bipolar should be particularly simple and perceived to substantially limit, a major disorder, post-traumatic stress disorder, straightforward. life activity, even if the public traumatic brain injury, obsessive (4) Mitigating measures include, but accommodation asserts, or may or does compulsive disorder, and schizophrenia are not limited to: ultimately establish, a defense to the each substantially limits brain function. (i) Medication, medical supplies, action prohibited by the ADA. (3) Condition, manner, or duration.(i) equipment, appliances, low-vision (2) An individual is not ‘‘regarded as At all times taking into account the devices (defined as devices that having such an impairment’’ if the principles set forth in the rules of magnify, enhance, or otherwise augment public accommodation demonstrates construction, in determining whether an a visual image, but not including that the impairment is, objectively, both
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‘‘transitory’’ and ‘‘minor.’’ A public from physical impairments, or other (g) Reasonable modifications for accommodation may not defeat sexual behavior disorders; individuals ‘‘regarded as’’ having a ‘‘regarded as’’ coverage of an individual (2) Compulsive gambling, disability. A public accommodation is simply by demonstrating that it kleptomania, or pyromania; or not required to provide a reasonable subjectively believed the impairment (3) Psychoactive substance use modification to an individual who was transitory and minor; rather, the disorders resulting from current illegal meets the definition of ‘‘disability’’ public accommodation must use of drugs. solely under the ‘‘regarded as’’ prong of demonstrate that the impairment is (in Subpart B—General Requirements the definition of ‘‘disability’’ at the case of an actual impairment) or § 36.105(a)(1)(iii). would be (in the case of a perceived ■ 11. Amend § 36.201 by adding * * * * * impairment), objectively, both paragraph (c) to read as follows: ‘‘transitory’’ and ‘‘minor.’’ For purposes ■ 13. Add appendix E to part 36 to read of this section, ‘‘transitory’’ is defined as § 36.201 General. as follows: * * * * * lasting or expected to last six months or Appendix E—Guidance to Revisions to less. (c) Claims of no disability. Nothing in this part shall provide the basis for a ADA Title II and Title III Regulations (3) Establishing that an individual is claim that an individual without a Revising the Meaning and ‘‘regarded as having such an disability was subject to discrimination Interpretation of the Definition of impairment’’ does not, by itself, because of a lack of disability, including ‘‘disability’’ and Other Provisions in establish liability. Liability is a claim that an individual with a Order To Incorporate the Requirements established under title III of the ADA disability was granted a reasonable of the ADA Amendments Act only when an individual proves that a modification that was denied to an public accommodation discriminated on For guidance providing a section-by- individual without a disability. the basis of disability within the section analysis of the revisions to 28 CFR parts 35 and 36 published on August 11, meaning of title III of the ADA, 42 Subpart C—Specific Requirements U.S.C. 12181–12189. 2016, see appendix C of 28 CFR part 35. ■ (g) Exclusions. The term ‘‘disability’’ 12. Amend § 36.302 by adding Dated: July 15, 2016. does not include— paragraph (g) to read as follows: Loretta E. Lynch, (1) Transvestism, transsexualism, § 36.302 Modifications in policies, Attorney General. pedophilia, exhibitionism, voyeurism, practices, or procedures. [FR Doc. 2016–17417 Filed 8–10–16; 8:45 a.m.] gender identity disorders not resulting * * * * * BILLING CODE 4410–13–P
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Reader Aids Federal Register Vol. 81, No. 155 Thursday, August 11, 2016
CUSTOMER SERVICE AND INFORMATION CFR PARTS AFFECTED DURING AUGUST
Federal Register/Code of Federal Regulations At the end of each month the Office of the Federal Register General Information, indexes and other finding 202–741–6000 publishes separately a List of CFR Sections Affected (LSA), which aids lists parts and sections affected by documents published since Laws 741–6000 the revision date of each title. 3 CFR Proposed Rules: Presidential Documents 429...... 51812 Executive orders and proclamations 741–6000 Proclamations: 430...... 52196 The United States Government Manual 741096000 9473...... 52965 431...... 51812 Executive Orders: 951...... 51140 Other Services 13675 (amended by Electronic and on-line services (voice) 741–6020 13734) ...... 52321 12 CFR 13734...... 52321 Privacy Act Compilation 741–6064 45...... 50605 Public Laws Update Service (numbers, dates, etc.) 741–6043 Administrative Orders: 237...... 50605 Notices: 349...... 50605 Notice of August 4, 624...... 50605 ELECTRONIC RESEARCH 2016 ...... 52587 1221...... 50605 Memorandums: World Wide Web 1806...... 52741 Memorandum of July 26, 2016 ...... 51773 Proposed Rules: Full text of the daily Federal Register, CFR and other publications 34...... 51394 is located at: www.fdsys.gov. Memorandum of August 3 2016...... 52323 213...... 51400 Federal Register information and research tools, including Public Memorandum of 226...... 51394, 51404 Inspection List, indexes, and Code of Federal Regulations are August 5 2016...... 52967 1013...... 51400 located at: www.ofr.gov. 1026...... 51394, 51404 5 CFR E-mail 13 CFR 630...... 51775 FEDREGTOC-L (Federal Register Table of Contents LISTSERV) is 126...... 51312 an open e-mail service that provides subscribers with a digital 6 CFR Proposed Rules: form of the Federal Register Table of Contents. The digital form Proposed Rules: 115...... 52595 of the Federal Register Table of Contents includes HTML and 5...... 52593 120...... 52595 PDF links to the full text of each document. 7 CFR 14 CFR To join or leave, go to http://listserv. access.gpo.gov and select 37...... 52589 Online mailing list archives, FEDREGTOC-L, Join or leave the list 13...... 51079 51...... 51297 (or change settings); then follow the instructions. 25 ...... 51081, 51084, 51086, 59...... 52969 51090, 51093, 51095 PENS (Public Law Electronic Notification Service) is an e-mail 205...... 51075 39 ...... 51097, 51314, 51317, service that notifies subscribers of recently enacted laws. 457...... 52590 51320, 51323, 51325, 51328, To subscribe, go to http://listserv.gsa.gov/archives/publaws-l.html 761...... 51274 51330, 52750, 52752, 52755, and select Join or leave the list (or change settings); then follow 762...... 51274 52758, 52975 the instructions. 763...... 51274 71 ...... 50613, 52761, 52762, 764...... 51274 52991, 52992 FEDREGTOC-L and PENS are mailing lists only. We cannot 765...... 51274 respond to specific inquiries. 91...... 50615 766...... 51274 97 ...... 51332, 51334, 51337, Reference questions. Send questions and comments about the 767...... 51274 51339 Federal Register system to: [email protected] 770...... 51274 383...... 52763 772...... 51274 The Federal Register staff cannot interpret specific documents or 406...... 51079 773...... 51274 regulations. 774...... 51274 Proposed Rules: CFR Checklist. Effective January 1, 2009, the CFR Checklist no 799...... 51274 39 ...... 51142, 51813, 51815, longer appears in the Federal Register. This information can be 986...... 51298 51818, 51821 found online at http://bookstore.gpo.gov/. 996...... 50283 71 ...... 52369, 53091, 53093 1205...... 51781 15 CFR FEDERAL REGISTER PAGES AND DATE, AUGUST 1436...... 51274 1940...... 51274 774...... 52326 50283–50604...... 1 Proposed Rules: 16 CFR 50605–51074...... 2 319...... 51381 51075–51296...... 3 929...... 51383 Proposed Rules: Ch. II ...... 51824 51297–51772...... 4 948...... 50406 259...... 52780 51773–52320...... 5 9 CFR 52321–52588...... 8 77...... 52325 17 CFR 52589–52740...... 9 Proposed Rules: Proposed Rules: 52741–52968...... 10 1...... 51386 3...... 51824 52969–53244...... 11 2...... 51386 4...... 51828 3...... 51386 210...... 51608 229...... 51608 10 CFR 230...... 51608 20...... 52974 239...... 51608
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240...... 51608 32 CFR 152...... 51425 246...... 50635 249...... 51608 505...... 52767 162...... 51425 252 ...... 50635, 50650, 50652 274...... 51608 1911...... 52591 166...... 51425 609...... 51125 257...... 51838 649...... 51125 18 CFR 33 CFR 271...... 53100 1816...... 50365 35...... 50290 100...... 50319, 50621 745...... 52393 1852...... 50365 154...... 51100 117 ...... 50320, 50621, 52335, 42 CFR Proposed Rules: Proposed Rules: 52769 202...... 53101 35...... 51726 165 ...... 50622, 51798, 51801, 405...... 51116 212...... 50652, 53101 52335, 52339, 52769, 53004 412...... 52056 215...... 53101 19 CFR 413...... 51970 Proposed Rules: 234...... 53101 418...... 52144 351...... 50617 334...... 52781 239...... 53101 424...... 51116, 51120 246...... 50680 20 CFR 34 CFR 455...... 51116, 51120 252...... 50680, 53101 404...... 51100 36...... 50321 Proposed Rules: 620...... 50298 405...... 52783 Ch. II ...... 52341 49 CFR Proposed Rules: Ch. III ...... 50324 410...... 52783 404...... 51412 411...... 52783 40...... 52364 36 CFR 413...... 51147 665...... 50367 21 CFR 242...... 52528 414...... 51147, 52783 670...... 53046 11...... 50303 417...... 52783 1002...... 50652 16...... 52994 37 CFR 422...... 52783 1040...... 51343 423...... 52783 101...... 50303 Proposed Rules: Proposed Rules: 514...... 52995 370...... 52782 424...... 52783 391...... 52608 610...... 52329 425...... 52783 1109...... 51147 460...... 52783 1105...... 52329 38 CFR 1144...... 51149 494...... 51147 Proposed Rules: 21...... 52770 1145...... 51149 510...... 50794 175...... 52370 1247...... 52784 Proposed Rules: 512...... 50794 176...... 52370 17...... 51836 1248...... 52784 177...... 52370 43 CFR 178...... 52370 39 CFR 10...... 52352 50 CFR 1105...... 52371 230...... 50624 Proposed Rules: 44 CFR 17...... 51348, 51550 22 CFR 18...... 52276 3001...... 51145 64...... 51808, 52353 239...... 50618 32...... 52248 40 CFR 45 CFR 36...... 52248 24 CFR 50...... 53006 144...... 53031 100...... 52528 291...... 52998 51...... 50330 147...... 53031 216...... 51126 Proposed Rules: 52 ...... 50336, 50339, 50342, 153...... 53031 219...... 53061 30...... 53095 50348, 50351, 50353, 50358, 154...... 53031 224...... 50394 206...... 53095 50360, 50362, 50626, 50628, 155...... 53031 300...... 50401, 51126 51341, 53008 600...... 51126 26 CFR 156...... 53031 56...... 51102 158...... 53031 622...... 51138, 52366 300...... 52766 60...... 52346, 52778 Ch. IX...... 53033 635...... 51810 301...... 51795 63 ...... 51114, 52346, 52348 648 ...... 51370, 51374, 52366 Proposed Rules: 97...... 50630 47 CFR 660...... 51126 1 ...... 50657, 50671, 51413 180 ...... 50630, 52348, 53012, 1...... 52354 679 ...... 50404, 50405, 51379, 25...... 51413 53019 4...... 52354 51380, 52367, 52779 301 ...... 50657, 50671, 51835 257...... 51802 11...... 53039 Proposed Rules: 271...... 53025 Ch. II ...... 51426 28 CFR Proposed Rules: 48 CFR Ch. III ...... 51426 35...... 53204 50...... 53097 202...... 50635 Ch. IV...... 51426 36...... 53204 51...... 50408 212...... 50635 Ch. V...... 51426 Proposed Rules: 52 ...... 50409, 50415, 50416, 213...... 53045 Ch. VI...... 51426 31...... 52377 50426, 50427, 50428, 50430, 218...... 53045 17...... 52796 52388, 53098 225...... 50650 622...... 53109 30 CFR 63...... 51145 242...... 50635 635...... 51165 1241...... 50306 122...... 50434 245...... 50652 679 ...... 50436, 50444, 52394
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